J-S17013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

KHALIL TURNER,

                        Appellant                   No. 1029 EDA 2016


               Appeal from the PCRA Order of March 11, 2016
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0001792-2010


BEFORE: OLSON, STABILE AND MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                             FILED APRIL 12, 2017

      Appellant, Khalil Turner, appeals from the order entered on March 11,

2016, dismissing his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The facts of this case, as summarized by this Court on direct appeal,

are as follows:

        In February of 2006, while housed in Curran Fromhold
        Correctional Facility, Kareen Glass told his cellmate, Eddie
        Almodovar, that he arranged for Dominic Thomas, a friend
        of Almodovar, to kill a witness in Glass’s pending homicide
        case. Almodovar told authorities what Glass stated and
        later gave a signed statement to Philadelphia Police Officer
        Patrick Boyle; Almodovar also identified Glass in a
        photograph.

        By May of 2009, Almodovar had been transferred to the
        Philadelphia Industrial Correction Center. Appellant and
        Ernest Baker, his co-defendant, shared a cell next to
        Almodovar.    On May 16, 2009, [A]ppellant approached
        Almodovar about his involvement in the case against Glass.
J-S17013-17


       After a brief exchange the two parted ways and Almodovar
       requested to spend the day in his cell. However, when
       Almodovar exited his cell, [A]ppellant was waiting outside
       holding a red and grey knife.          Appellant swung at
       Almodovar cutting his lip with the knife. The two men
       began throwing punches and wrestling; the altercation
       lasted approximately five minutes. [Almodovar] testified
       that a group of inmates, including Baker, tried to break up
       the fight and Almodovar was stabbed in the back with a
       weapon similar to an ice pick. This weapon, customarily
       seen in prisons, may have been a large screw of about six
       to eight inches that is typically removed from a light in the
       prison and sharpened down to form a weapon. Almodovar
       was unsure as to whether [A]ppellant or Baker used the ice
       pick, as there were so many people around at this point.
       Corrections Officer James Graham ended the brawl by
       spraying [A]ppellant and Baker with pepper spray and
       handcuffing the men.

       Almodovar was taken for medical treatment where he
       received 18 stitches for the injury to his lip. Almodovar
       suffered puncture wounds and scratches to his back, chest
       and arm. He also endured four lacerations and eight poke
       wounds to his back, one wound to his arm, and two wounds
       to his chest. Almodovar was then placed in protective
       custody.

       A search of [A]ppellant’s cell yielded several documents.
       The documents referred to an ice pick, a knife/shank, and
       “snitches” in code as well as in actuality. No weapons were
       recovered during the search.

                          *        *           *

       On August 9, 2011, the jury found [A]ppellant guilty of
       aggravated assault and [possessing an instrument of
       crime]. He was found not guilty of attempted murder and
       conspiracy.   On September 23, 2011, [A]ppellant was
       sentenced to 10 to 20 years’ incarceration for aggravated
       assault and a consecutive sentence of 2½ to 5 years’ on the
       weapons offense.




                                   -2-
J-S17013-17



Commonwealth v. Turner, 2013 WL 11271519 (Pa. Super. 2013)

(unpublished memorandum) (record citations and footnote omitted).            We

affirmed Appellant’s judgment of sentence on April 8, 2013. Id.              Our

Supreme Court denied further review. See Commonwealth v. Turner, 75

A.3d 547 (Pa. 2013).

        On May 14, 2014, Appellant filed a pro se PCRA petition. Counsel was

appointed and he filed an amended PCRA petition on July 14, 2015. After

giving Appellant notice of its intent to dismiss the PCRA petition under

Pa.R.Crim.P. 907,1 the PCRA court entered an order on March 11, 2016

denying Appellant relief. This timely appeal resulted.2

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

          Did the [PCRA] [c]ourt err in failing to hold an evidentiary
          hearing to determine substantial issues of material fact
          alleged in [] Appellant’s PCRA petition?

Appellant’s Brief at 8.



____________________________________________


1
    Appellant filed a pro se response to the PCRA court’s Rule 907 notice.
2
   Appellant filed a counseled notice of appeal on March 30, 2016. Attached
to Appellant’s appellate brief is a purported statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). However, the docket does not
reflect that the PCRA court ordered the preparation of a 1925(b) statement
and there is no indication on the docket that one was filed. In its opinion
issued on August 26, 2016, however, the PCRA court addressed each of the
claims as presented in Appellant’s amended, counseled PCRA petition.
Appellant’s current claims relate specifically to issues presented in his
amended PCRA petition.



                                           -3-
J-S17013-17



      While Appellant’s single issue avers he is entitled to an evidentiary

hearing, his complaints relate to three distinct claims of trial counsel

ineffectiveness.

      “In PCRA proceedings, an appellate court's scope of review is limited

by the PCRA's parameters; since most PCRA appeals involve mixed

questions of fact and law, the standard of review is whether the PCRA court's

findings    are    supported     by   the    record   and   free       of   legal    error.”

Commonwealth v. Pitts, 981 A.2d 875, 878 (Pa. 2009). “[T]he right to an

evidentiary hearing on a PCRA petition is not absolute.” Commonwealth v.

Barbosa, 819 A.2d 81, 85, (Pa. Super. 2003) (internal citation omitted). “If

the PCRA court can determine from the record that no genuine issues of

material fact exist, then a hearing is not necessary.” Id., citing Pa.R.Crim.P.

907(1).

      “To    establish   trial   counsel's    ineffectiveness,     a    petitioner    must

demonstrate: (1) the underlying claim has arguable merit; (2) counsel had

no reasonable basis for the course of action or inaction chosen; and (3)

counsel's action or inaction prejudiced the petitioner.” Commonwealth v.

Spotz, 84 A.3d 294, 303 n.3 (Pa. 2014). “Boilerplate allegations and bald

assertions of no reasonable basis and/or ensuing prejudice cannot satisfy a

petitioner's burden to prove that counsel was ineffective.” Commonwealth

v. Sneed, 45 A.3d 1096, 1106 (Pa. 2012).

      In his first issue presented, Appellant avers that trial counsel was

ineffective for failing to call Paul Miles, Miguel Deleon, and/or Derrick Spivey,

                                            -4-
J-S17013-17



purported eyewitnesses to the incident in question who were available to

testify at trial. Appellant’s Brief at 14-15.

      We have previously determined:

        Where an appellant claims that counsel was ineffective for
        failing to call a particular witness, we require proof of that
        witness's availability to testify, as well an adequate
        assertion that the substance of the purported testimony
        would make a difference in the case. With respect to such
        claims, our Court has explained that:

            the appellant must show: (1) that the witness
            existed; (2) that the witness was available; (3) that
            counsel was informed of the existence of the witness
            or should have known of the witness's existence; (4)
            that the witness was prepared to cooperate and
            would have testified on appellant's behalf; and (5)
            that the absence of the testimony prejudiced
            appellant.

        Thus, trial counsel will not be found ineffective for failing to
        investigate or call a witness unless there is some showing
        by the appellant that the witness's testimony would have
        been helpful to the defense. 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. Michaud, 70 A.3d 862, 867–868 (Pa. Super. 2013)

(internal quotations, citations, and original brackets omitted). Moreover, we

have held that “[a] defendant who voluntarily waives the right to call

witnesses during a colloquy cannot later claim ineffective assistance and

purport that he was coerced by counsel.”        Commonwealth       v. Lawson,

762 A.2d 753, 756 (Pa. Super. 2000).

      Here, the trial court colloquied Appellant prior to the close of trial and

Appellant stated that he did not intend to call witnesses despite his right to

                                       -5-
J-S17013-17



do so. N.T., 8/5/2011, at 15-16. Instantly, the PCRA court determined that

Appellant “cannot now claim ineffectiveness for this alleged error.”    PCRA

Court Opinion, 8/26/2016, at 6. We agree. Moreover, upon review of the

certified record, attached to Appellant’s amended PCRA petition are

certifications from Appellant’s PCRA counsel. Therein, PCRA counsel certifies

that he “expect[ed]” Paul Miles, Miguel Deleon, and Derrick Spivey to testify

that they were eyewitnesses to the incident, that Appellant was innocent,

and that the witnesses were available for trial.    Amended PCRA Petition,

3/5/2015, Attachments.     Aside from blanket statements, Appellant fails to

show that these witnesses were available and ready to cooperate and testify

on Appellant’s behalf.   In fact, PCRA counsel did not even know Miguel

Deleon’s whereabouts. Id. Appellant also fails to set forth the substance of

the purported eyewitnesses’ testimony other than conclusory certifications

that Appellant was innocent. He has not met his burden of establishing that

these three identified witnesses would have been helpful to the defense.

Finally, upon review of the notes of testimony from trial, we recognize that

the victim and three corrections officers identified Appellant as the victim’s

assailant. Appellant has not demonstrated how the outcome of trial would

have been different with the purported witnesses’ testimony.       Hence, his

first claim fails.

       Next, Appellant claims that trial counsel was ineffective for advising

him not to testify at trial because “prior [crimen falsi] convictions could be

used against him to impeach his credibility.” Appellant’s Brief at 15. More

                                    -6-
J-S17013-17



specifically, Appellant contends that the PCRA court’s “opinion states that []

Appellant had been convicted of burglary in 2003” but that “[current

c]ounsel could find no indication of that conviction in the record.” Id. at 15

n.1. Appellant admits that “while he did have arrests in his past that were

considered crimen falsi, there were no convictions.” Id. at 15.

       In this case, the PCRA court determined that “trial counsel’s advice

was sound because [Appellant] was convicted of a burglary charge on May

20, 2003.”      PCRA Court Opinion, 8/26/2016, at 7.       Upon review of the

certified record, while the PCRA court used the term “conviction,” Appellant

was, in fact, “adjudicated delinquent” of burglary on that date.          The

Commonwealth, in a motion to dismiss Appellant’s PCRA petition filed on

December 7, 2015, argued that Appellant’s burglary adjudication qualified

under Pa.R.E. 609(d) and would have been admitted for impeachment

purposes had Appellant testified at trial.3        Commonwealth’s Motion to

Dismiss, 12/7/2015, at 7-8.         Upon independent review, we confirmed that

Appellant was adjudicated delinquent for burglary on May 20, 2003.        See

CP-51-JV-0050152-2003.            “In a criminal case only, evidence of the

adjudication of delinquency for an offense under the Juvenile Act […] may be
____________________________________________


3
    We note that on November 10, 2016, the Commonwealth filed an
application for an extension of time to file an appellate brief which was
granted by order dated December 7, 2016. To date, the Commonwealth has
not filed one. Appellate advocacy would have been helpful in this matter,
especially on this specific issue. Instead, this Court had to scour the record
to examine the merits of Appellant’s claim.



                                           -7-
J-S17013-17



used to impeach the credibility of a witness if conviction of the offense would

be admissible to attack the credibility of an adult.” Pa.R.E. 609(d) (internal

citation omitted); see also 42 Pa.C.S.A. § 6354(b)(4) (“The disposition of a

child […] may only be used against him […] in a criminal proceeding, if the

child was adjudicated delinquent for an offense, the evidence of which would

be admissible if committed by an adult.”). The prior adjudication must have

occurred within 10 years of the witness’s testimony.                 Pa.R.E. 609(b).

“Where the date of [adjudication] or last date of confinement is within ten

years of the trial, evidence of the [adjudication] of a crimen falsi is per se

admissible.” Pa.R.E. 609, comment.              Burglary is considered a crimen falsi

offense     and   is   admissible   for   the    purpose   of   impeachment.     See

Commonwealth v. Trippett, 932 A.2d 188, 199–200 (Pa. Super. 2007).

Appellant’s trial in the current matter took place in August 2011,

approximately eight years after his May 2003 adjudication for burglary.

Hence, his prior adjudication was per se admissible had Appellant testified at

trial.   Accordingly, there is no merit to Appellant’s claim that trial counsel

rendered ineffective assistance in advising him that his prior adjudication

would have been used to impeach him had he testified at trial.

         Finally, Appellant claims that despite his best efforts “to preserve the

shirt worn by the complaining witness” he was unable to procure it and,

therefore, trial counsel was ineffective for failing to request standard jury

instruction 3.21(B) pertaining to the Commonwealth’s failure to produce




                                          -8-
J-S17013-17



tangible evidence. Id. at 16. As such, Appellant claims there are material

issues of fact to resolve which require an evidentiary hearing. Id. at 17.

      On this issue, the PCRA court concluded:

        [Appellant] claims that the shirt was in the sole possession
        of the Commonwealth. However, he fails to establish that
        this was so and offers no substantiated claim as such. The
        only evidence he shows is a grievance form requesting the
        shirt, but fails to establish that it was in possession of the
        Commonwealth. He claims that there were no holes in the
        shirt which would have proven that the victim was not
        stabbed in the incident. However, [Appellant] stipulated to
        the medical records detailing the wounds and lacerations
        suffered by the victim. Moreover, there were photos taken
        after the assault which provided visual evidence of these
        injuries. Additionally, Lieutenant Ellwood Talbot identified
        photos of [Appellant] which showed him covered in blood
        but without any injury. In light of the testimony and
        stipulation, [Appellant] fails to show a substantive claim for
        relief. Thus, there was no basis for the instruction.

PCRA Court Opinion, 8/26/2016, at 8.

      “[I]t has long been the rule in this Commonwealth that a trial court

should not instruct the jury on legal principles which have no application to

the facts presented at trial.”     Commonwealth v. Buterbaugh, 91 A.3d

1247, 1257 (Pa. Super. 2014).

      Pennsylvania    Suggested      Standard    Criminal   Jury   Instruction,

3.21(b)(2), failure to produce document or other tangible evidence at trial,

includes the following language:

        If three factors are present, and there is no satisfactory
        explanation for a party's failure to produce an item, the jury
        is allowed to draw a common-sense inference that the item
        would have been evidence unfavorable to that party. The
        three necessary factors are:

                                      -9-
J-S17013-17



            First, the item is available to that party and not to
            the other;

            Second, it appears the item contains or shows
            special information material to the issue; and

            Third, the item would not be merely cumulative
            evidence.

Pa.S.S.C.J.I. 3.21(B).

       Here, Appellant has no evidence that the victim’s shirt was ever in the

Commonwealth’s possession. Appellant alleged in letters to prison officials

that he wished to preserve the shirt for trial. However, there is no indication

that   prison   officials   retained   the   shirt   or   turned   it   over   to   the

Commonwealth. Thus, the first requirement under Pa.S.S.C.J.I. 3.21(B) was

not met. Moreover, Appellant does not challenge the fact that he stipulated

to the victim’s medical records at trial.        Those records showed the victim

suffered from puncture wounds and lacerations consistent with a stabbing.

The Commonwealth also entered photographs of the victim’s injuries into the

record at trial.      Finally, prison officials obtained documentation from

Appellant’s cell indicating he planned a stabbing. In light of this additional,

unchallenged evidence, Appellant has not demonstrated how he was

prejudiced by trial counsel’s failure to request Pennsylvania Suggested

Standard Criminal Jury Instruction 3.21(b)(2). Hence, Appellant’s last claim

lacks merit and Appellant was not prejudiced.

       Finally, we reject Appellant’s suggestion that an evidentiary hearing

was required.      “[I]t is well settled that a PCRA court does not need to


                                        - 10 -
J-S17013-17



conduct a hearing on all issues related to counsel's ineffectiveness.”

Commonwealth v. Rush, 838 A.2d 651, 659–660 (Pa. 2003) (citations

omitted).     We will only reverse a decision not to hold a hearing upon an

abuse of discretion. Id. Again, we stress that when “the PCRA court can

determine from the record that no genuine issues of material fact exist, then

a hearing is not necessary.” Barbosa, 819 A.2d at 85. Here, the PCRA court

was able to assess the merits of Appellant’s based solely on the record and

there was no need for an evidentiary hearing. Accordingly, we discern no

abuse of discretion by the PCRA court in declining to hold an unnecessary

proceeding.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/2017




                                    - 11 -
