J-S93034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DONTA REGUSTORS,

                            Appellant                No. 2023 EDA 2015


                    Appeal from the PCRA Order June 1, 2015
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0001677-2011


BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED FEBRUARY 22, 2017

        Appellant, Donta Regustors, appeals from the order of June 1, 2015,

which denied, without a hearing, his first counseled petition brought under

the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Counsel

has filed a motion to withdraw.1 For the reasons discussed below, we grant

counsel’s motion and affirm the denial of the PCRA petition.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Counsel mistakenly filed a “Turner/Finley Brief” comparable to a brief
pursuant to Anders v. California, 386 U.S. 738 (1967).                 See
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).               However, a
Turner/Finley no-merit letter is the correct filing. Because an Anders brief
provides greater protection to a defendant, this Court may accept an
Anders brief instead of a Turner/Finley letter. See Commonwealth v.
Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011).
J-S93034-16


       We take the underlying facts and procedural history in this matter

from this Court’s November 13, 2013 memorandum on direct appeal and our

independent review of the certified record.

                    At trial, the Commonwealth presented the
              testimony of Edward Humphrey, Charles Britten,[a]
              William Whitehouse, John Jones, Richard Sax, Dr.
              Marlon Osbourne, Philadelphia Police Officers Gerald
              Wolford, Kevin Port, Anthony Mooney, Travis
              Washington, Jeremy Elliot, Timothy Esack, Stephen
              Ahmie, and Donna Grebloski, Philadelphia Police
              Detectives Phillip Nordo, Stephen Grace, Ron Dove,
              Bill Urban, and Grady Petterson, and Philadelphia
              Police Sergeants Christopher Small and Matt
              Gillespie. [Appellant] presented the testimony of
              Ronald Coleman. Viewed in the light most favorable
              to the Commonwealth as the verdict winner, their
              testimony established the following.
                     [a]
                        As Mr. Britten was killed between the
                     preliminary hearing and the trial, his
                     preliminary hearing testimony was read
                     to the jury, pursuant to Pa.R.E.
                     804(b)(1).[2]

                    On August 28, 2010, at approximately 4[:00]
              a.m., Edward Humphrey and Charles Britten were
              hanging out at the corner of 26th Street and Silver
              Street. Jonathan Wilson was nearby sitting in his car.
              After the three men had been on the corner for
              about thirty minutes, [Appellant] and Kyle Pelzer
              rode up 26th Street on bicycles and began firing
              handguns at Mr. Britten and Mr. Humphrey from a
              short distance away. [Appellant] and Mr. Pelzer fired
              approximately ten shots at Mr. Britten and Mr.
              Humphrey. Mr. Britten and Mr. Humphrey ducked
____________________________________________


2
  Mr. Britten testified under an immunity agreement; by stipulation of the
parties, the Commonwealth read the immunity agreement into the record.
(See N.T. Trial, 3/28/12, at 5, 16-21).



                                           -2-
J-S93034-16


           behind a car, and Mr. Britten began firing his own
           gun back at [Appellant] and Mr. Pelzer. [Appellant]
           and Mr. Pelzer continued riding down the street on
           their bicycles as they fired their guns at Mr. Britten
           and Mr. Humphrey, shooting Mr. Wilson in the
           process. Mr. Wilson drove away, but lost control of
           the car and crashed into a pole. Mr. Britten and Mr.
           Humphrey both fled the scene.

                  Mr. Wilson was taken by ambulance to Temple
           Hospital, where he was pronounced dead at 4:42
           a.m. He had been shot once in the back with a
           [nine]-millimeter bullet.  The bullet had torn his
           abdominal aorta, which caused him to bleed to
           death. Police removed [twenty-four] nine-millimeter
           fired cartridge casings from the scene of the
           shooting.    Police also recovered nine .380 fired
           cartridge casings from the scene of the shooting,
           which were fired from Mr. Britten’s gun.

                 Mr. Britten was questioned by homicide
           detectives. He identified [Appellant] and Mr. Pelzer,
           both of whom he knew personally, as the people who
           shot at himself and Mr. Humphrey, thereby killing
           Mr. Wilson. Mr. Humphrey was also questioned by
           the police. He identified [Appellant], whom he knew
           personally, and Mr. Pelzer, whom he did not know,
           from a photo array.

     Trial Court Opinion, 2/[0]8/[]13, at 2-3        (record citations
     omitted).

            [Appellant] and Pelzer were arrested and charged with
     multiple offenses relating to the incident. A joint jury trial was
     held from March 26, 2012 to April 2, 2012. On that day, the
     jury convicted [Appellant] of one count of first-degree murder
     (victim Wilson), two counts of attempted murder (victims Britten
     and Humphrey), one count of criminal conspiracy to commit
     murder, two counts of first-degree aggravated assault (victims




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J-S93034-16


        Britten and Humphrey), and one count of [possessing an
        instrument of a crime (PIC)].[b],[3]
              [b]
                 [Appellant] was acquitted of several other charges
              that originated from a different set [of] events that
              allegedly took place two weeks before the charges at
              issue here. Pelzer was acquitted of all charges. Trial
              [Ct. Op.], [ ], at 1 n.1.

               A sentencing hearing was held on May 31, 2012. The
        [trial] court imposed the mandatory sentence of life
        imprisonment for the first-degree murder conviction, a
        consecutive sentence of [not less than] eight [nor more than
        sixteen] years’ incarceration for the attempted murder of Britten,
        a consecutive sentence of [not less than] eight [nor more than
        sixteen] years’ incarceration for the attempted murder of
        Humphrey, and a concurrent sentence of [not less than] eight
        [nor more than sixteen] years’ imprisonment for the conspiracy
        charge.[c] [Appellant] filed a post-sentence motion, which was
        denied on October 2, 2012. This appeal followed.
              [c]
                 The [trial] court did not impose a further penalty
              with respect to the PIC offense and [the] aggravated
              assault convictions merged for sentencing purposes.

(Commonwealth v. Regustors, 91 A.3d 1282, No. 3113 EDA 2012,

unpublished memorandum at **2-4 (Pa. Super. filed November 13, 2013)

(record citations and one footnote omitted)).

        On November 13, 2013, this Court affirmed the judgment of sentence.

(See id.).      Appellant did not seek leave to appeal to the Pennsylvania

Supreme Court.

        On November 12, 2014, Appellant filed the instant, timely, counseled

PCRA petition accompanied by a memorandum of law. On April 8, 2014, the
____________________________________________


3
    18 Pa.C.S.A. §§ 2502(a), 901, 903, 2702(a), and 907(a), respectively.



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Commonwealth moved to dismiss the petition. On May 11, 2015, the PCRA

court issued notice of its intent to dismiss the petition pursuant to

Pennsylvania Rule of Criminal Procedure 907(1).     Appellant did not file a

response to the Rule 907 notice.         On June 1, 2015, the PCRA court

dismissed Appellant’s PCRA petition.

      On June 29, 2015, despite being represented by counsel, Appellant

filed a pro se notice of appeal.   That same day, the PCRA court ordered

Appellant to file a concise statement of errors complained of on appeal. See

Pa.R.A.P. 1925(b). Subsequently, Appellant filed two pro se requests for an

extension of time; the PCRA court denied both motions.           The court

forwarded Appellant’s motions to PCRA counsel. Counsel did not take any

action.   On September 1, 2015, the PCRA court issued an opinion, finding

Appellant waived all issues on appeal for failing to file a Rule 1925(b)

statement. See Pa.R.A.P. 1925(a).

      On December 9, 2015, this Court remanded the matter to the trial

court for a determination of whether PCRA counsel abandoned Appellant on

appeal. On December 30, 2015, the PCRA court held a hearing on the issue;

the court then permitted PCRA counsel to withdraw and appointed new

counsel to represent Appellant on appeal. On January 20, 2016, this Court

again remanded the matter to permit new counsel to file a Rule 1925(b)

statement.    Counsel filed a timely statement on February 8, 2016.     See




                                       -5-
J-S93034-16


Pa.R.A.P. 1925(b). On March 11, 2016, the trial court issued a supplemental

opinion. See Pa.R.A.P. 1925(a).

     On July 26, 2016, counsel filed a motion to withdraw in this Court. On

September 9, 2016, Appellant filed a pro se response.

     On appeal, the Turner/Finley brief raises the following questions for

our review.

     The Global Question

     Whether there is anything in the record that might arguably
     support the appeal that obviates a conclusion that the appeal is
     without merit and/or frivolous[?]

     Specific Areas of Inquiry

     Whether trial counsel and PCRA counsel were ineffective (A)
     where they failed to investigate and interview and obtain
     affidavits from potential exculpatory witnesses (Tamika Ellis,
     Delores Hawthorn, Givon Williams, Shawonda Harris, Erica
     Walker, Turquoise Morrison, Shanee Brooks and Tyreek Thoms),
     (B) where they failed to procure a videotape from Sampala Beer
     Distributor[,] (C) where they failed to investigate forensic
     evidence of the shell casings[,] (D) where they failed to obtain a
     handwriting expert to validate a witness John Jones’ contention
     that he did not signe (sic) the statements[,] and (E) where they
     failed to investigate whether disgraced homicide Detective Ron
     Dove tampered with evidence[?]

     Whether trial counsel was ineffective for failing to object to the
     admissibility of evidence regarding the shooting at 25 th and
     Somerset on [August 27, 2010,] where the probative value of
     the evidence was outweighed by its prejudice[?]

     Whether trial counsel was ineffective by failing to mount a viable
     and vigorous defense where he (A) failed to object to the
     introduction of evidence not provided in discovery (Edward
     Humphr[e]y’s statement to police), (B) where he failed to object
     to a pattern of leading questions used by the prosecutor
     throughout the trial[,] (C) where he left the courtroom during

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J-S93034-16


      the trial without permiss[ion,] drawing a reprimand from the
      [trial] court[,] (D) where he failed to examine Police Officer
      Ahmie concerning the fact that more than one .380 pistols were
      used in the events at issue[,] (E) where he failed to cross-
      examine Police Officer Esack about recovering a live round on
      August 27 at the crime scene and sent it to the DNA lab for
      analysis[,] and (F) where he failed to object when the [trial]
      court provided firearms evidence to the jury during its
      deliberations[?]

(Turner/Finley Brief, at 6-7) (unnecessary emphasis and capitalization

omitted).

      In his pro se filing, Appellant raises three additional questions.

      I. Was trial counsel ineffective for failing to object to the
         prosecutor becoming a witness during trial by vouching for
         the credibility of a witness?

      II. Was trial counsel ineffective for failing to object to the
         immunity petition inasmuch as it denied Appellant the right to
         cross-examination?

      III. Is it legally possible for intent to transfer to an accomplice or
          co[-]conspirator insofar as it requires proof on intent to
          commit an unintended killing and was trial counsel ineffective
          for failing to object thereto?

(Appellant’s Answer in Opposition to Finley Brief, at 2, 6, 9) (unnecessary

capitalization omitted).

      Appellant’s   court-appointed    counsel   has   moved     this   Court   for

permission to withdraw and has submitted a Turner/Finley-compliant brief,

as is required for counsel seeking to withdraw on appeal of the denial of a

PCRA petition.      Court-appointed counsel who seeks to withdraw from

representing an appellant on appeal of a denial of a PCRA petition on the




                                      -7-
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basis that the appeal lacks merit must review the case zealously.           See

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007).

      Turner/Finley counsel must then submit a “no-merit” letter to
      the trial court, or brief on appeal to this Court, detailing the
      nature and extent of counsel’s diligent review of the case, listing
      the issues which the petitioner wants to have reviewed,
      explaining why and how those issues lack merit, and requesting
      permission to withdraw.

            Counsel must also send to the petitioner: (1) a copy of the
      “no-merit” letter/brief; (2) a copy of counsel’s petition to
      withdraw; and (3) a statement advising petitioner of the right to
      proceed pro se or by new counsel.

Id. (citations omitted).   Here, counsel has substantially complied with the

dictates of Turner/Finley.

      When this Court receives a Turner/Finley brief, we conduct an

independent review of the record in light of the PCRA petition and the issues

set forth within it, as well as of the contents of the motion of counsel to

withdraw. See id. We will grant the motion to withdraw if we agree with

counsel that the PCRA petition is meritless. See id.

      Appellant appeals from the dismissal of his PCRA petition without a

hearing.   We review the denial of a post-conviction petition to determine

whether the record supports the PCRA court’s findings and whether its order

is otherwise free of legal error.   See Commonwealth v. Faulk, 21 A.3d

1196, 1199 (Pa. Super. 2011).       To be eligible for relief pursuant to the

PCRA, Appellant must establish, inter alia, that his conviction or sentence

resulted from one or more of the enumerated errors or defects found in 42


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Pa.C.S.A. § 9543(a)(2).          See 42 Pa.C.S.A. § 9543(a)(2).   He must also

establish that the issues raised in the PCRA petition have not been

previously litigated or waived.           See 42 Pa.C.S.A. § 9543(a)(3).     An

allegation of error “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 postconviction proceeding.” 42 Pa.C.S.A. § 9544(b). Further,

             . . . a PCRA petitioner is not automatically entitled to an
       evidentiary hearing.    We review the PCRA court’s decision
       dismissing a petition without a hearing for an abuse of
       discretion.

                    [T]he right to an evidentiary hearing on a post-
              conviction petition is not absolute. It is within the
              PCRA court’s discretion to decline to hold a hearing if
              the petitioner’s claim is patently frivolous and has no
              support either in the record or other evidence. It is
              the responsibility of the reviewing court on appeal to
              examine each issue raised in the PCRA petition in
              light of the record certified before it in order to
              determine if the PCRA court erred in its
              determination that there were no genuine issues of
              material fact in controversy and in denying relief
              without conducting an evidentiary hearing.

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations

omitted).

       All of the issues raised by counsel in the Turner/Finley brief and in

Appellant’s pro se response4 claim that he received ineffective assistance of

____________________________________________


4
 In Appellant’s third issue in his pro se response, in addition to claiming that
he received ineffective assistance of counsel, Appellant also appears to
substantively challenge the trial court’s jury instruction on criminal
(Footnote Continued Next Page)


                                           -9-
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trial counsel.5   Counsel is presumed effective, and an appellant bears the

burden to prove otherwise. See Commonwealth v. McDermitt, 66 A.3d

810, 813 (Pa. Super. 2013). The test for ineffective assistance of counsel is

the same under both the United States and Pennsylvania Constitutions. See

Strickland v. Washington, 466 U.S. 668, 687 (1984); Commonwealth v.

Jones, 815 A.2d 598, 611 (Pa. 2002). An appellant must demonstrate that:

(1) his underlying claim is of arguable merit; (2) the particular course of

conduct pursued by counsel did not have some reasonable basis designed to

effectuate his interests; and (3) but for counsel’s ineffectiveness, there is a

reasonable probability that the outcome of the proceedings would have been

different. See Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001),

                       _______________________
(Footnote Continued)

conspiracy and accomplice liability as it relates to transferred intent. (See
Appellant’s Answer in Opposition to Finley Brief, at 9-11). However, this
claim is waived because Appellant could have raised it on direct appeal but
did not do so. See 42 Pa.C.S.A. § 9544(b); (see also Regustors, supra at
**1-2, *4, *9).
5
   In the first claim in the Turner/Finley brief, counsel also alleges that
Appellant received ineffective assistance of PCRA counsel.              (See
Turner/Finley Brief, at 6). However, Appellant did not raise his concerns
about PCRA counsel’s stewardship in a response to the Rule 907 notice or in
a serial PCRA petition. Appellant raised the claims for the first time in his
Pa.R.A.P. 1925(b) statement.        (See [Appellant’s] 1925(b) Statement,
2/08/16, at unnumbered page 1). This Court has held that claims of
ineffective assistance of PCRA counsel must be raised either in a response to
a Rule 907 notice or in a serial PCRA petition; they cannot be raised for the
first time in a Rule 1925(b) statement or on appeal. See Commonwealth
v. Ford, 44 A.3d 1190, 1200-01 (Pa. Super. 2012).             Thus, we lack
jurisdiction to hear Appellant’s claim of ineffective assistance of PCRA
counsel and, therefore, will not address it.



                                           - 10 -
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abrogated on other grounds by Commonwealth v. Grant, 813 A.2d 726

(Pa. 2002). “A failure to satisfy any prong of the test for ineffectiveness will

require rejection of the claim.” Jones, supra at 611 (citation omitted).

      In its first claim, the Turner/Finley brief contends that trial counsel

was ineffective for failing to call eight allegedly exculpatory witnesses. (See

Turner/Finley Brief, at 6). The PCRA court found Appellant had waived this

claim, noting that it was undeveloped and Appellant failed to discuss how it

met the second and third prongs of the Strickland test. (See PCRA Court

Opinion, 3/11/16, at 6). We agree.

      In order to show that trial counsel was ineffective in failing to present

certain witnesses, Appellant must demonstrate

      the existence of and the availability of the witnesses, counsel’s
      actual awareness, or duty to know, of the witnesses, the
      willingness and ability of the witnesses to cooperate and appear
      on the defendant’s behalf and the necessity for the proposed
      testimony in order to avoid prejudice. Moreover, Appellant must
      show how the uncalled witnesses’ testimony would have been
      beneficial under the circumstances of the case.

Commonwealth v. Gibson, 951 A.2d 1110, 1133-1134 (Pa. 2008)

(citations and quotation marks omitted).         Appellant has not met this

standard.




                                     - 11 -
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       Appellant did not attach any affidavits or other documentation from

the witnesses to either his PCRA petition or to his memorandum of law.6

Further, Appellant did not provide any information regarding the substance

of their proposed testimony.             (See Petition for Post-Conviction Relief,

11/12/14, at unnumbered pages 4-6; Memorandum of Law, 11/12/14, at

unnumbered pages 5-6).            Appellant never states that trial counsel was

aware of the existence of these witnesses.          (See id.).   Lastly, Appellant

never explains how the testimony of these witnesses would have proved

beneficial to his case. (See id.). Thus, Appellant failed to set forth in his

PCRA petition the ineffectiveness analysis required by Strickland.            See

Strickland, supra at 687. Because Appellant did not establish any of the

three prongs, we must deem counsel’s assistance constitutionally effective.

See Commonwealth v. Rolan, 964 A.2d 398, 406 (Pa. Super. 2008)

(holding where appellant fails to address three prongs of ineffectiveness
____________________________________________


6
 In the Turner/Finley brief, counsel states that he attempted to investigate
Appellant’s contention regarding the eight witnesses; counsel was able to
locate two of the witnesses and, in the brief, discusses their proposed
testimony. (See Turner/Finley Brief, at 21-26). Counsel appended copies
of the statements they gave to his investigator as well as the investigator’s
report to the brief. (See id. at Exhibits F, G, and J). However, these
documents were not available to the PCRA court. Thus, they are not
included in the certified record. This Court has consistently stated that
copying material and attaching it to the brief does not make it a part of the
certified record. See First Union Nat. Bank v. F.A. Realty Investors
Corp., 812 A.2d 719, 724 n.3 (Pa. Super. 2002); In re M.T., 607 A.2d 271,
275 (Pa. Super. 1992). Therefore, as the documents are merely appended
to the brief, we will not consider them.




                                          - 12 -
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test, he does not meet his burden of proving ineffective assistance of

counsel, and counsel is deemed constitutionally effective).   There is no basis

to upset the PCRA court’s finding that Appellant was not entitled to PCRA

relief on this basis.

      The Turner/Finley brief also contends that counsel was ineffective for

failing to call an expert witness to validate witness John Jones’ claim that it

was not his signature on his statement to the police. (See Turner/Finley

Brief, at 6). We disagree.

      “To establish ineffective assistance of counsel for the failure to present

an expert witness, appellant must present facts establishing that counsel

knew or should have known of the particular witness.” Commonwealth v.

Millward, 830 A.2d 991, 994 (Pa. Super. 2003), appeal denied, 848 A.2d

928 (Pa. 2004) (citation omitted). Further, “the defendant must articulate

what evidence was available and identify the witness who was willing to offer

such evidence.” Commonwealth v. Bryant, 855 A.2d 726, 745 (Pa. 2004)

(citations omitted). Appellant’s PCRA petition and memorandum of law did

not identify any witness willing to offer expert testimony. (See Petition for

Post-Conviction Relief, 11/12/14, at unnumbered pages 4-6; Memorandum

of Law, 11/12/14, at unnumbered pages 5-6).         Therefore, his claim fails.

See Bryant, supra at 745; see also Commonwealth v. Gwynn, 943 A.2d

940, 945 (Pa. 2008) (when defendant claims counsel was ineffective for

failing to introduce expert testimony at trial he must articulate “what


                                    - 13 -
J-S93034-16


evidence was available and identify a witness who was willing to offer such

[evidence].”) (citations omitted).       There is no basis to upset the PCRA

court’s finding that Appellant was not entitled to PCRA relief on this basis.

      Further, the Turner/Finley brief maintains that trial counsel was

ineffective for failing to obtain a videotape from Sampala Beer Distributor;

failing to investigate forensic evidence with respect to a shell casing; and

failing “to investigate whether disgraced homicide detective Ron Dove

tampered with evidence.”          (Turner/Finley Brief, at 6) (unnecessary

capitalization and emphasis omitted).        However, Appellant’s arguments in

the PCRA court with respect to these claims suffer from the same fatal flaws

as discussed above, because Appellant never explained the substance of

these claims, never properly applied the Strickland test, and never

explained how a proper investigation of these issues would have changed

the   result.   (See   Petition   for    Post-Conviction   Relief,   11/12/14,   at

unnumbered pages 4-6; Memorandum of Law, 11/12/14, at unnumbered

pages 5-6).

      Our Supreme Court has stated that “[c]laims of ineffective assistance

of counsel are not self-proving[.]”       Commonwealth v. Spotz, 896 A.2d

1191, 1250 (Pa. 2006) (citations omitted).          The Court has repeatedly

refused to consider bald allegations of ineffectiveness, such as these. See

Commonwealth v. Thomas, 744 A.2d 713, 716 (Pa. 2000) (declining to

find counsel ineffective “where appellant fail[ed] to allege with specificity


                                        - 14 -
J-S93034-16


sufficient facts in support of his claim.”). Thus, because Appellant failed to

argue his claims with sufficient specificity below, we agree with the PCRA

court that Appellant waived these claims.        (See PCRA Ct. Op., at 5-6).

Appellant is not entitled to PCRA relief on these issues.

      In the next claim, the Turner/Finley brief states that trial counsel was

ineffective for failing to object to the admissibility of evidence pertaining to a

shooting at 25th and Somerset Streets on August 27, 2010.                   (See

Turner/Finley Brief, at 36-37).      The PCRA court, Turner/Finley counsel,

and the Commonwealth, all contend that this claim is factually incorrect as

trial counsel “vigorously argued against the introduction of the evidence” at

a January 5, 2012 motion hearing. (Turner/Finley Brief, at 37; see also

PCRA Ct. Op., at 7; Commonwealth’s Brief, at 11). The PCRA court and the

Commonwealth agree that once counsel objected at the hearing, he was not

required to renew the objection at trial.         (See PCRA Ct. Op., at 7;

Commonwealth’s Brief, at 11).      The PCRA court also notes that Appellant

never raised the claim that the trial court erred in admitting this evidence on

direct appeal and never argued that appellate counsel was ineffective for

failing to raise the issue on direct appeal. (See PCRA Ct. Op., at 7 n.3). We

find that Appellant waived the claim.

      The certified record does not include the January 5, 2012 hearing

transcript. We have reviewed the requests for transcript filed both on direct

appeal and in the instant matter and could not locate any request that the


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court reporter transcribe this hearing.          (See Request for Transcript,

10/31/12,   at   unnumbered     page   1;     Notice   of   Appeal,   6/29/15,   at

unnumbered page 2).      We have stated “[w]hen the appellant . . . fails to

conform to the requirements of [Pa.R.A.P.] 1911 [(relating to transcript

requests)], any claims that cannot be resolved in the absence of the

necessary transcript or transcripts must be deemed waived for the purpose

of appellate review.”    Commonwealth v. Preston, 904 A.2d 1, 7 (Pa.

Super. 2006), appeal denied, 916 A.2d 632 (Pa. 2007) (citation omitted).

Further, it is the appellant’s responsibility to make certain that the certified

record contains all items necessary to ensure that this Court is able to

review his claims. See Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa.

Super. 2008).    An appellant’s failure to ensure that the original record as

certified for appeal contains sufficient documentation to enable the court to

conduct a proper review constitutes a waiver of the issue sought to be

reviewed on appeal.     See Growell v. Maietta, 931 A.2d 667, 676 (Pa.

Super. 2007), appeal denied, 951 A.2d 1164 (Pa. 2008); see also Smith v.

Smith, 637 A.2d 622, 623-24 (Pa. Super. 1993), appeal denied, 652 A.2d

1325 (Pa. 1993). Accordingly, we find Appellant’s contention is waived.

      The final claim in the Turner/Finley brief is that six errors by trial

counsel cumulatively deprived him of an adequate defense at trial.           (See

Turner/Finley Brief, at 38). However, our Supreme Court has stated, “that

no number of failed ineffectiveness claims may collectively warrant relief if


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they fail to do so individually. . . . if multiple instances of deficient

performance are found, the assessment of prejudice properly may be

premised upon cumulation.”      Commonwealth v. Reid, 99 A.3d 470, 520

(Pa. 2014) (citations and internal quotation marks omitted).

      Here, the trial court found that none of the six individual ineffective

assistance of counsel allegations merited relief because Appellant “did not

provide any argument or analysis showing that the underlying claims were of

arguable merit, that counsel’s actions lacked any reasonable basis, or that

the ineffectiveness of counsel caused [Appellant] prejudice.” (PCRA Ct. Op.,

at 8) (citation omitted).    We have reviewed Appellant’s PCRA petition and

accompanying memorandum of law and agree that, as discussed above,

Appellant failed to apply the Strickland test or make any cognizable

argument that counsel was ineffective.        (See Petition for Post-Conviction

Relief,   11/12/14, at   unnumbered     pages    4-6;   Memorandum    of   Law,

11/12/14, at unnumbered pages 11-13).           There is no basis to upset the

PCRA court’s finding that Appellant was not entitled to PCRA relief on this

basis. See Reid, supra at 520; Spotz, supra at 1250.

      In his pro se response, Appellant raises three claims of ineffective

assistance of counsel.      (See Appellant’s Answer in Opposition to Finley

Brief, at 2, 6, 9).   However, Appellant waived these claims because they

were not raised in his PCRA petition.         (See Petition for Post-Conviction

Relief, 11/12/14, at unnumbered pages 4-6).


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       It is long settled that issues not raised in a PCRA or amended PCRA

petition are waived on appeal.    See Commonwealth v. Lauro, 819 A.2d

100, 103 (Pa. Super. 2003), appeal denied, 830 A.2d 975 (Pa. 2003)

(waiving five issues not in original or amended PCRA petition). Further, an

appellant cannot raise a subject for the first time on appeal.             See

Commonwealth v. Hanford, 937 A.2d 1094, 1098 n.3 (Pa. Super. 2007),

appeal denied, 956 A.2d 432 (Pa. 2008) (new legal theories cannot be raised

for first time on appeal); Pa.R.A.P. 302(a).          Accordingly, we find that

Appellant waived all issues in his pro se response.

      Appellant’s issues are either waived or meritless. Further, this Court

has conducted an independent review of the record as required by

Turner/Finley and finds that no meritorious issues exist.

      Motion to withdraw as counsel granted. Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/22/2017




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