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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                  v.

RONALD ROGERS,                                      No. 728 EDA 2018

                       Appellant


             Appeal from the PCRA Order, February 23, 2018,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0011563-2009


BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED JULY 15, 2019

     Ronald Rogers appeals from the February 23, 2018 order entered in the

Court of Common Pleas of Philadelphia County that denied his petition filed

pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546
("PCRA"). We affirm.

     A previous panel of this court set forth the following:

           On August 23, 2006, Appellant and Demetrius Hayes
           were involved in a shootout in which an unrelated
           bystander, William Green, was struck by an errant
           bullet and killed. On February 8-11, 2011, Appellant
           was tried by a jury. Tyrone Singleton, an eyewitness,
           testified for the Commonwealth. During the direct
           appeal of this case, we summarized his testimony as
           follows:

                 Tyrone Singleton testified that he met
                 with his friend, Demetrius Hayes, at the
                 corner of 10th and Master Streets on
                 August 23, 2006.    He got into the
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               passenger seat of Mr. Hayes' black
               Mercedez-Benz. Mr. Hayes was seated in
               the driver's seat. Mr. Hayes drove down
               10th Street towards Thompson Street.
               Mr. Hayes pulled his vehicle over toward
               the curb to where Appellant was standing.
               While    the      vehicle
                                     was    stopped,
               Mr. Singleton saw two (2) friends of
               Appellant's, Andre Holliday and Ronald
               Fenwick, walking on Thompson Street
               toward Mr. Hayes' vehicle.        He saw
               another male he knew to be a friend of
               Appellant's across the street standing on
               the corner.

               Mr. Singleton heard Appellant say to
               Mr. Hayes that "he needs $6,000.00 or it's
               on." Appellant then pulled a weapon from
               his waist and began firing. Mr. Singleton
               leaned over and heard bullets hitting the
               car. Mr. Hayes then pulled a gun that he
               had next to him on his seat and returned
               fire two (2) or three (3) times and then
               took off at a high rate of speed.
               Mr. Singleton continued to hear gun shots
               coming from outside the car as they
               pulled away.

               Mr. Singleton had first testified at trial
               that Mr. Hayes fired first but then testified
               the next day that he said that because he
               was afraid of two (2) men who had been
               in the courtroom the day before and who
               were no longer present.

               Mr. Singleton's      statement     to    the
               detectives, testimony at the preliminary
               hearing and testimony at the trial of
               Demetrius Hayes were all consistent with
               his final trial testimony that [Appellant]
               pulled his weapon first and fired the first
               shot.
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                Mr. Singleton further testified that he and
                Mr. Hayes inspected the vehicle when
                they got to 10th and Popular Streets and
                saw that one of the tires was flat; there
                were   three    (3)   bullet   holes   in   the
                passenger side door; and, two (2) bullet
                holes in the passenger side air bag.
                Mr. Singleton went to retrieve his own
                vehicle and picked up Mr. Hayes. Later
                that day, they heard that a person known
                as "Ill Will" had been killed.

                Mr. Singleton           that prior to
                                 testified
                August 23, [2006], he had witnessed an
                incident where [Appellant] shot at
                Mr. Hayes' vehicle.

          Commonwealth v. Rogers, No. 2834 EDA 2011,
          2013 WL 11262994, *1 -*2 (Pa. Super. June 19, 2013)
          (unpublished memorandum) (original         brackets
          omitted), appeal denied, 83 A.3d 415 (Pa. 2014).

          As noted above, Singleton had previously testified for
          the defense at the trial of Hayes and at Appellant's
          preliminary hearing on September 9, 2009. He had
          also given a statement to police detectives in relation
          to this case. In each instance, Singleton testified,
          consistently with the above, that Appellant fired the
          first shots. As a result of Singleton's testimony at
          Hayes' trial, Hayes was acquitted of all charges,
          including murder.

          However, when Singleton first began his testimony at
          Appellant's trial, he stated that it was Hayes, and not
          Singleton, who shot first. The trial court stopped the
          testimony, excused the jury for the day, and said the
          following on the record to Singleton:

                Now that we are all here, let me express
                this to you, Mr. Singleton, in no uncertain
                terms: I don't know what your street mind
                thinks, but I am going to explain it to you.
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               You maybe made a mistake today. I am
               not sure. You may have heard incorrectly.
               You just took the stand in this case, this
               week, and said that [Hayes] shot first, but
               last week, you said, under oath, and on
               this same record, with the same
               stenographer, and the same Judge, that
               [Appellant] shot first.

               You have now just placed yourself -- the
               District Attorney was getting ready to see
               if that was a mistake. I stopped it there,
               before you said one more thing.

               Be very careful what you do, because
               that's Perjury, and it is Perjury on the
               record, and it is Perjury in front of the
               same Judge.

               If you are playing some little game here,
               guess what is going to happen? You are
               going to get charged with Perjury. Now,
               this is a Homicide case, so I will make sure
               that you receive a maximum consecutive
               sentence.

               Think about who you are helping out here,
               because it isn't yourself.

               Now, we are going to take a break for
               today. Do some long hard thinking
               tonight. You get on this stand, and you
               tell the truth. You have been warned. So,
               you can tell whatever story you want, but
               I am telling you now: If you say that
               again, it is Perjury, because it is on the
               record. If it is the truth, and you perjured
               yourself before, then live with it, but if it
               is not the truth, and you think that you
               are doing some favor, or you are afraid,
               guess who is getting the sentence here?
               You,   and     it   will   be   the   maximum,
               consecutive.
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                Take him back.

          Appellant's attorney made no objection to the court's
          remarks.

          The next day, Singleton resumed his testimony,
          recanted his testimony from the previous day, and
          testified that Appellant fired first. Singleton explained
          that the preceding day he "made a mistake" and "said
          the wrong thing," because he was nervous.

          At the conclusion of the trial, Appellant was found
          guilty of third-degree murder, aggravated assault,
          violating the Uniform Firearms Act, and possession of
          an instrument of crime.[Footnote 1]          He was
          sentenced on May 5, 2011, to sixteen to thirty-two
          years' incarceration.[Footnote 2]           Appellant's
          judgment of sentence was affirmed by this Court on
          June 19, 2013, and the Pennsylvania Supreme Court
          denied Appellant's request for further direct review on
          January 16, 2014.

                [Footnote 1] 18 Pa.C.S.[A.] §§ 2502(c),
                2702, 6106, and 907, respectively.

                [Footnote    2]    Appellant   received    a
                sentence of sixteen to thirty-two years'
                incarceration for the murder charge, and
                lesser concurrent sentences on his other
                charges.

          Appellant filed a timely PCRA petition, pro se, on
          August 5, 2014, and thereafter filed a separate motion
          to   proceed pro se.     Counsel was appointed to
          represent Appellant on March 24, 2015; on July 9,
          2015, counsel filed a no -merit letter[Footnote 3] and
          petition to withdraw. The PCRA court conducted
          Grazier[Footnote 4] hearings on October 19, 2015,
          and December 21, 2015, after which the court allowed
          counsel to withdraw and allowed Appellant to proceed
          pro se and file an amended petition. [Footnote 5]

                [Footnote   3] See Commonwealth v.
                Turner,     544   A.2d   927   (Pa.   1988);


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

                [Footnote 4] See Commonwealth v.
                Grazier, 713 A.2d 81 (Pa. 1998).

                [Footnote 5] Appellant was present at the
                Grazier hearings via video-conferencing.

          Appellant filed an amended petition on February 22,
          2016.[Footnote 6] On June 23, 2016, the PCRA court
          issued notice of its intention to dismiss Appellant's
          claims    without      a    hearing    pursuant     to
          Pa.R.Crim.P. 907. The court announced its reasons
          for dismissing the petition in open court that day; a
          representative of the Commonwealth was present in
          court, but Appellant was not. Appellant did not
          respond to the Rule 907 notice, and on August 9,
          2016, the PCRA court dismissed his petition.

          Appellant thereafter filed this timely appeal.

                [Footnote 6] The Commonwealth moved
                to dismiss Appellant's PCRA petition on
                May 24, 2016.       In its motion, the
                Commonwealth argued that the trial
                court's   comments    to   Singleton   were
                within that court's discretion and that the
                firearms    evidence     at trial,   which
                established that eight fired cartridges
                cases [sic] matching Appellant's gun were
                found at the scene of the shooting, versus
                only three from Hayes' gun, supported
                Singleton's account that Appellant fired
                first and continued to fire as Hayes
                escaped. The Commonwealth also argued
                that    no   evidentiary   hearing   was
                warranted in this case because Appellant
                did not provide a signed certification
                regarding each witness he intended to call
                at the hearing.
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Commonwealth v. Rogers, No. 2799 EDA 2016 at 1-6, unpublished
memorandum (Pa.Super. filed August 16, 2017) (record citations omitted;

brackets in original).

      In the appeal of the August 9, 2016 order denying appellant PCRA relief,

appellant raised two issues. In his first issue, appellant claimed that the PCRA

court abused its discretion in dismissing appellant's PCRA petition because

counsel was ineffective for failing to object to the trial court's improper
pressuring of Tyrone Singleton, the Commonwealth's key witness. (Id. at 6.)

This court found that this claim had arguable merit. (Id. at 12.) Additionally,

because the PCRA court failed to hold an evidentiary hearing or address the

other two prongs of the ineffectiveness inquiry, this court determined that a

remand for an evidentiary hearing was necessary. This court further directed

that in the event that either party appealed, the PCRA court was to file a
written decision explaining its disposition. (Id.) As a result of its disposition

on appellant's first issue, this court declined to address appellant's second

issue on appeal, wherein appellant alleged ineffectiveness of trial counsel for

failure to bring forth certain evidence.' (Id.)

      On February 23, 2018, the PCRA court held the evidentiary hearing,

after which it denied appellant PCRA relief. Appellant filed a timely notice of

appeal. The PCRA court directed appellant to file a concise statement of errors


' We note that in the appeal of the August 9, 2016 order at No. 2799 EDA
2016,    this    court   denied       the    Commonwealth's        motion     for
reconsideration/reargurnent.

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complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely

complied. Thereafter, the PCRA court filed its Rule 1925(a) opinion.

      Appellant raises the following issue for our review:

              Whether the [PCRA] court erred in denying PCRA relief
              when the record clearly showed trial counsel had no
              reasonable basis for his strategy choices on an issue
              of arguable merit and trial counsel's lack of reasonable
              strategy choice sufficiently caused prejudice to
              appellant to the effect that there is a reasonable
              probability that the outcome would have been
              different[?]

Appellant's brief at 4.

      In PCRA appeals, our scope of review "is limited to the findings of the

PCRA court and the evidence on the record of the PCRA court's hearing, viewed

in the light most favorable to the prevailing party." Commonwealth v. Sam,

952 A.2d 565, 573 (Pa. 2008) (internal quotation omitted).          Because most

PCRA appeals involve questions of fact and law, we employ a mixed standard

of review.    Pitts, 981 A.2d at 878. We defer to the PCRA court's factual
findings     and   credibility   determinations   supported    by   the   record.

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc). In

contrast, we review the PCRA court's legal conclusions de novo. Id.

      Appellant's sole claim asserts ineffective assistance of trial counsel.

              In evaluating claims of ineffective assistance of
              counsel, we presume that counsel is effective.
              Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d
              435, 441 (Pa. 1999). To overcome this presumption,
              Appellant must establish three factors. First, that the
              underlying claim has arguable merit.               See
              Commonwealth v. Travaglia, 541 Pa. 108, 661

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           A.2d 352, 356 (Pa. 1995). Second, that counsel had
           no reasonable basis for his action or inaction. Id. In
           determining whether counsel's action was reasonable,
           we do not question whether there were other more
           logical courses of action which counsel could have
           pursued; rather, we must examine whether counsel's
           decisions had any reasonable basis. See Rollins, 738
           A.2d at 441; Commonwealth v. (Charles) Pierce,
           515 Pa. 153, 527 A.2d 973, 975 (Pa. 1987). Finally,
           "Appellant must establish that he has been prejudiced
           by counsel's ineffectiveness; in order to meet this
           burden, he must show that 'but for the act or omission
            in question, the outcome of the proceedings would
            have been different." See Rollins, 738 A.2d at 441
            (quoting Travaglia, 661 A.2d at 357). A claim of
            ineffectiveness may be denied by a showing that the
            petitioner's evidence fails to meet any of these
            prongs. Commonwealth v. (Michael) Pierce, 567
            Pa.   186,   786   A.2d   203,   221-22   (Pa.   2001);
           Commonwealth v. Basemore, 560 Pa. 258, 744
           A.2d 717, 738 n.23 (Pa. 2000); Commonwealth v.
           Albrecht, 554 Pa. 31, 720 A.2d 693, 701 (Pa. 1998)
           ("If it is clear that Appellant has not demonstrated
           that counsel's act or omission adversely affected the
            outcome of the proceedings, the claim may be
           dismissed on that basis alone and the court need not
           first determine whether the first and second prongs
           have been met.").

Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007).

     At the outset, it is important to note that appellant's defense at trial was

self-defense, premised on the claim that Hayes fired first.       Following the

evidentiary hearing on remand, the PCRA court summarized trial counsel's

evidentiary hearing testimony as follows:

           At the evidentiary hearing after remand, trial counsel
           explained that his basis for not objecting to the Court's
           admonishment of Singleton, and not bringing out the
           court's admonishment before the jury, was that he did
            not want to adopt Singleton as a witness for the

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               defense. Trial counsel fully expected Singleton to
               testify that [appellant] was the initial shooter and
               based his defense on that fact. Counsel's defense was
               that Singleton should not be believed because he was
               Hayes' friend and a passenger in the vehicle that was
               shot at numerous times. A reasonable person would
               fully expect Singleton to be adverse to [appellant] as
               he was a party with interest and bias. Furthermore,
               Singleton had convictions for crimes of dishonesty and
               was currently incarcerated. In contrast, the defense
               had an independent witness with no criminal
               background[:] Myra Summers. Summers was driving
               directly behind Hayes' vehicle and gave a statement
               to detectives that the person in the vehicle shot first.
               This was the witness the Defense wanted the jury to
               believe. It would be much more implausible for the
               jury to accept Singleton's newfound testimony that his
               friend shot first, particularly in light of the three prior
               statements given by Singleton that [appellant] shot
               first. Quite simply, it would not benefit the defense
               for Singleton to change his testimony so there would
               be no reason for counsel to object to the court's
               admonishment.

PCRA court opinion, 6/26/18 at 10.

       Our review of the record reveals that the PCRA court accurately
summarized trial counsel's testimony as to why he did not object to the trial

court's admonishment of Singleton and place the admonishment in front of

the jury. Indeed, trial counsel repeatedly testified that he had no basis for

objecting to the admonishment because regardless of how Singleton testified,

his testimony would not have been determinative because he lacked
credibility.   (Notes of testimony, 2/23/18 at 15, 25, 34-36, 39-41.) Trial
counsel further testified       that the most credible defense witness was
Ms. Summers who happened to be travelling in a vehicle behind the Hayes



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vehicle, witnessed the shooting, and had no connection to any individual
involved in the shooting.   (Id. at 15-16, 21, 33.) Based on trial counsel's
testimony, the PCRA court properly determined that counsel had a reasonable

basis for failing to object to the trial court's admonishment of Singleton and

for failing to place the admonishment in front of the jury. Therefore, appellant

failed to satisfy the reasonable basis prong of the ineffectiveness inquiry and

the PCRA court properly denied his petition

      Nevertheless, with respect to prejudice, we note that in his brief to this

court, appellant claims that:

            [s]ince Ms. Summers never gave trial counsel
            testimony that was usable to support the self-defense
            claim,[2]   counsel's  failure to     proceed     with
            impeachment of Singleton for changing testimony
            after the trial court admonition prevented [a]ppellant
            from having the jury fully see Singleton entirely to
            decide if his initial direct testimony was trustworthy.
            Had the jury believed Singleton was trustworthy
            about this, there was a reasonable probability a
            different outcome would have occurred.
Appellant's brief at 10 (emphasis added).     In order to establish prejudice,

however, a petitioner is required to "show that but for the act or omission in

question, the outcome of the proceedings would have been different."
Washington, 925 A.2d at 594 (citation and internal quotation marks


2 We note that appellant failed to include the trial transcript in the certified
record on appeal, so we may not consider it. See Pa.R.A.P. 1911 (requiring
appellant to order any necessary transcripts to complete the record for their
appeal); see also, Commonwealth v. Williams, 715 A.2d 1101, 1103 (Pa.
1998) (holding that appellate courts are limited to considering only the facts
contained in the certified record on appeal).
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omitted). Appellant's claim that if the jury believed Singleton, "there was a

reasonable probability a different outcome would have occurred" falls far short

of establishing that but for trial counsel's failure to object and place the
admonishment in front of the jury, the outcome would have been different.

     We finally note that in concluding that appellant failed to demonstrate

prejudice, the PCRA court explained:

            Had       Counsel   brought out before the jury that
            Mr. Singleton's testimony could possibly have been
            coerced     by    the    Court,      irregardless    [sic],
            Mr. Singleton's testimony was still inconsistent
            testimony because there is a track record. He gave a
            statement to police. He testified at the preliminary
            hearing. He testified at a prior trial just a week earlier.
            So what we would have is still an unreliable witness.

            Secondly, all witnesses were consistent, and that
            being Mr. Singleton, and Miss Summers and ballistics,
            basically, that [appellant's] weapon, being held by
            [appellant], continued to fire at a vehicle that was
            fleeing, thereby, hitting an innocent bystander with a
            bullet.

            It was proven that it was [appellant's] gun because
            [appellant] was arrested with that particular weapon
            two months later that fired the fatal bullet and that
            nine fired cartridge casings were found at the scene
            and there was testimony that the vehicle was riddled
            with bullets or had bullet holes in it and the vehicle
            took off immediately upon shots being fired, indicating
            that whoever was firing the weapon, [appellant]
            continued to fire at a fleeing vehicle which no longer
            posed a threat to [appellant], thereby, hitting an
            innocent bystander.

            So that would not make out self-defense nor would it
            qualify under voluntary manslaughter or a mistaken
            belief in self-defense. So it really would not have
            changed the result of the proceedings.


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Notes of testimony, 2/23/18 at 63-64. Accordingly, denial of appellant's PCRA

petition would also have been proper because appellant failed to demonstrate

prejudice.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn,
Prothonotary

Date: 7/15/19




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