J. S20023/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                   v.                    :
                                         :
MALIK COLLINS,                           :         No. 3815 EDA 2015
                                         :
                        Appellant        :


              Appeal from the PCRA Order, December 4, 2015,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0015549-2010


BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED JUNE 27, 2017

      Malik Collins appeals pro se from the December 4, 2015 order

dismissing his petition for relief filed pursuant to the Post-Conviction Relief

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.1

      The PCRA court set forth the relevant facts and procedural history of

this case as follows:

                 On October 10, 2005, at approximately
            8:42 p.m., Philadelphia Police Officers Pollack and
            Hand received a report of a shooting at 20th and
            Diamond Streets in Philadelphia. Upon arrival, they
            found decedent Hassan Bentley lying in front of
            2046 N. 20th Street with multiple gunshot wounds to
            the head and buttocks. Eyewitnesses Jose Briggs
            and Clarence Milton testified at trial about their
            observations of [appellant] and accomplices.

1
  The Commonwealth filed a brief indicating that it was relying on the
rationale set forth in the PCRA court’s June 28, 2016 opinion.
(Commonwealth’s brief at 2.)
J. S20023/17


          Specifically, Jose Briggs, a resident of 2046 N. 20th
          Street, testified that he, along with several other
          people including Clarence Milton, Steve Brown and
          Mr. Bentley, had been outside on the street engaged
          in drug activity. Positioned at the entrance to the
          alleyway which opened up next to 2046 N. 20th
          Street, Mr. Milton was able to see who entered and
          exited the block from both directions, as well as
          anyone present in the driveway. Clarence Martin
          observed Vincent Segers, also known as “Waters,”
          driving a blue-green Grand Cherokee through the
          section of 20th Street where everyone was gathered.
          A man identified as Yaku Walls, also known as “P.L.,”
          was in the front passenger seat and [appellant] was
          in the backseat of the vehicle as it drove up
          20th Street and paused in the middle of the block at
          20th and Page before turning the corner.

                 Mr. Segers had previously spoken to Mr. Milton
          about resuming drug sales in that area, but was told
          that he was not welcome on that corner, as
          Mr. Milton, Mr. Brown and Mr. Bentley were
          conducting their business there. A few minutes after
          Mr. Segers drove through the crowded block,
          Mr. Milton observed [appellant] and Mr. Walls
          emerge from the driveway wearing baseball caps and
          dickey suits.      Mr. Bentley emerged from the
          alleyway, walking right behind Mr. Brown, as
          [appellant] and his accomplice approached and fired
          a barrage of bullets toward everyone standing
          outside. Mr. Briggs, standing at the base of the
          steps in front of his home, observed a man dressed
          in all black, wearing a black baseball cap with a gold
          “P” emblazoned on the front and pulled down low on
          his face, walk from the driveway and open fire before
          he fled on foot. Everyone in the area ran away when
          the shots rang out and they later gathered around
          the home of Mr. Brown. The group quickly realized
          that Steve Brown suffered a gunshot wound to his
          arm and that Mr. Bentley was no longer among
          them. Several people returned to that area to find
          Mr. Bentley dying and police officers on the scene.
          Officers arrived on the scene within minutes of the
          shooting, and noticed shell casings on the ground


                                  -2-
J. S20023/17


              from at least two (2) different caliber weapons, a
              .9 millimeter and a .22 caliber, in the area where
              Mr. Bentley was slain.     It was pouring rain that
              evening, however officers subsequently recovered
              fired cartridge casings from a .9 millimeter handgun,
              but they were unable to find any .22 caliber casings.

                    On December 16, 2005, Mr. Briggs gave a
              statement to police, wherein he described the
              shooter as a black male, about 5’9”, who weighed
              about 140-165 pounds, brown complexion, about
              22-years-old, but was unable to identify the
              perpetrator.    Without additional witnesses, this
              matter became a “cold case” and remained unsolved
              for many years. Between June and September of
              2008, while facing state and federal charges,
              Clarence Milton came forward with information.
              Mr. Milton identified [appellant] as the shooter and
              gave a statement to police outlining the events that
              led to Mr. Bentley’s death.          Based on this
              information, police interviewed Mr. Briggs again, and
              on October 2, 2008, he was shown a photographic
              array wherein he identified [appellant] as the
              shooter. In that interview, Mr. Briggs went on to
              state that Mr. Brown was the intended target,
              purportedly in retaliation for a separate shooting
              allegedly committed by Mr. Brown. Based on the
              information gathered during the investigation, an
              arrest warrant for [appellant] was prepared by
              Detective Kelhower and [appellant] was arrested on
              January 21, 2010.

PCRA court opinion, 6/28/16 at 3-5, quoting trial court opinion, 5/9/13 at

1-4 (citations to notes of testimony and footnote omitted).

        On November 20, 2012, appellant proceeded to a jury trial and was

found guilty of first-degree murder, criminal conspiracy, and possessing an

instrument of crime.2     On November 26, 2012, the trial court sentenced


2
    18 Pa.C.S.A. §§ 2502, 903, and 907, respectively.


                                      -3-
J. S20023/17


appellant to life imprisonment without the possibility of parole, followed by a

consecutive term of 22½ to 50 years’ imprisonment. On November 7, 2013,

a panel of this court affirmed appellant’s judgment of sentence, and our

supreme court denied his petition for allowance of appeal on May 13, 2014.

See Commonwealth v. Collins, 91 A.3d 1275 (Pa.Super. 2013), appeal

denied, 91 A.3d 1238 (Pa. 2014).3

      On December 2, 2014, appellant filed a pro se PCRA petition and

Stephen T. O’Hanlon, Esq. (“PCRA counsel”) was appointed to represent him.

PCRA counsel did not file an amended petition on appellant’s behalf.        On

August 10, 2015, PCRA counsel filed a “no-merit” letter and a petition to

withdraw, in accordance with Commonwealth v. Turner, 544 A.2d 927

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

(en banc). On October 30, 2015, the PCRA court provided appellant with

notice of its intention to dismiss his petition without a hearing, pursuant to

Pa.R.Crim.P. 907(1).   Thereafter, on December 4, 2015, the PCRA court

granted PCRA counsel’s petition to withdraw and dismissed appellant’s

petition without a hearing.   Appellant filed a pro se notice of appeal on

December 10, 2015.4


3
  The record reflects that appellant was represented at trial and on direct
appeal by Michael E. Wallace, Esq. (hereinafter, “counsel”).
4
 The PCRA court did not order appellant to file a concise statement of errors
complained of on appeal, in accordance with Pa.R.A.P. 1925(b).
Nonetheless, appellant has attached a Rule 1925(b) statement to his
appellate brief, although the docket is unclear as to whether this statement


                                     -4-
J. S20023/17


      On appeal, appellant raises the following issues challenging the

ineffectiveness of counsel:

            1.    Did the PCRA Court error [sic], denying
                  [a]ppellant     an     evidentiary      hearing
                  Ad Subjiciendum---where [counsel] rendered
                  deficient, where counsel failed to [ad]equately
                  [in]vestigate and challenge the Probable
                  cause?

            2.    Did the PCRA Court error [sic], denying
                  [a]ppellant a Writ of Habeas Corpus for
                  evidentiary hearing Ad Subjiciendum---where
                  [counsel] rendered ineffective, where counsel
                  failed   to   object   and    [pre]serve  the
                  Commonwealth’s recharging Appellate [sic]
                  without arrest or Miranda warnings?

            3.    Did the PCRA Court error [sic] where it denied
                  [a]ppellant      an    evidentiary      hearing
                  Ad Subjiciendum---where       [counsel]    was
                  ineffective; where the trial [c]ourt abused
                  it’s [sic] discretion denying [a]ppellant an
                  arrest of judgment pursuant to the conviction
                  of, Murder in the first degree; Possession of
                  Instrument of Crime, and Conspiracy; where
                  the evidence introduced was based on pure
                  speculation and conj[e]cture?

            4.    Did the PCRA Court error [sic] in not affording
                  appellant an evidentiary hearing, where
                  [counsel] rendered deficient; where counsel
                  had failed to challenge and [pre]serve the
                  Commonwealth’s Prosecutorial Misconduct;
                  where the Prosecuting Attorney failed to
                  (est)ablish the mens rea for first degree
                  Murder and related charge(s)?




was ever filed. (See appellant’s brief at Exhibit A.) On June 28, 2016, the
PCRA court issued an opinion addressing appellant’s claims.


                                    -5-
J. S20023/17


          5.   Did the PCRA Court error [sic] in not granting
               [a]ppellant an evidentiary Ad Subjiciendum
               where, [counsel] rendered ineffective; where
               he failed to raise and [pre]serve the
               Prosecution[’]s witnesses’ testimony’s [sic]
               being inconsistent and of perjury?

          6.   Did the PCRA Court error [sic]---denying
               [a]ppellant     an      evidentiary      hearing
               Ad Subjiciendum      where     [counsel]    was
               ineffective; where he failed to [ad]equately
               cross-examine          the         Prosecution’s
               witnesses’ [sic] Clarence Milton, who’s [sic]
               testimony was based on perjury of what he
               observed to [a]ppellant being the SHOOTER,
               which if counsel would have thoroughly
               [in]vestigated the tier [sic] of facts, it would
               have been seen that Mr. Milton was
               incarcerated on the [date] in question?

          7.   Did the PCRA court err in not affording
               [a]ppellant    a    Writ    of   Habeas     Corpus
               Ad Subjiciendum       for    evidentiary;    where
               [counsel] was ineffective; where he failed to
               investigate,     find     and     call    character
               witnesses’ [sic] of, Willie Bell, whom [sic] was
               incarcerated in Philadelphia County Prison at
               [C.F.C.F.] on the [date] that, Clarence Milton
               testified too that he had observed [a]ppellant
               SHOOT the victim?

          8.   Did the PCRA Court error [sic] not granting
               Appellate   [sic]  an    evidentiary   Hearing
               Ad Subjiciendum---where [counsel] failed to
               raise and [pre]serve the Prosecutor’s witness
               Jose Briggs, whose testimony was that,
               [a]ppellant was not at the scene. This was
               why the case was originally dismissed?

          9.   Did the PCRA Court error [sic] not affording
               [a]ppellant  a  Writ  of   Habeas    Corpus
               Ad Subjiciendum  for   evidentiary  hearing
               ---where [counsel] rendered deficient on



                                  -6-
J. S20023/17


                  Appellate    review    in    not     raising   the
                  aforewith [sic] [claims] (1-9)?

            10.   Did the PCRA Court error [sic] not affording
                  [a]ppellant      an       evidentiary       hearing
                  Ad Subjiciendum---where          [counsel]      was
                  ineffective on Appellate review, where counsel
                  deficiently LIED stating; [J]ose Briggs stated,
                  appellant was not present at Murder, when
                  Mr. Briggs testified initially quite oppositely and
                  where charges were initially dismissed?

Appellant’s brief at 4-5 (internal quotation marks omitted; citation omitted;

capitalization and some bracketed text in original).

      Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s

findings will not be disturbed unless there is no support for the findings in

the certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super.

2014) (citations omitted). “This Court grants great deference to the findings

of the PCRA court, and we will not disturb those findings merely because the

record could support a contrary holding.”      Commonwealth v. Hickman,

799 A.2d 136, 140 (Pa.Super. 2002) (citation omitted).

      Where the PCRA court has dismissed a petitioner’s petition without an

evidentiary hearing, as was the case here, we review the PCRA court’s

decision for an abuse of discretion.    See Commonwealth v. Roney, 79




                                     -7-
J. S20023/17


A.3d 595, 604 (Pa. 2013), cert. denied, 135 S.Ct. 56 (2014) (citation

omitted). Moreover,

            the 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. Wah, 42 A.3d 335, 338 (Pa.Super. 2012) (internal

citations omitted).

      Instantly, all ten of appellant’s claims challenge the effectiveness of

counsel. To prevail on a claim of ineffective assistance of counsel under the

PCRA, a petitioner must plead and prove by a preponderance of the evidence

that counsel’s ineffectiveness “so undermined the truth-determining process

that no reliable adjudication of guilt or innocence could have taken place.”

42 Pa.C.S.A. § 9543(a)(2)(ii). Specifically, a petitioner must establish that

“the underlying claim has arguable merit; second, that counsel had no

reasonable basis for his action or inaction; and third, that Appellant was

prejudiced.”      Commonwealth v. Charleston, 94 A.3d 1012, 1020

(Pa.Super. 2014), appeal denied, 104 A.3d 523 (Pa. 2014) (citation

omitted).      “[C]ounsel is presumed to be effective and the burden of

demonstrating ineffectiveness rests on appellant.”        Commonwealth v.


                                     -8-
J. S20023/17


Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011), appeal denied, 30 A.3d

487 (Pa. 2011) (citation omitted).       Additionally, we note that “counsel

cannot be held ineffective for failing to pursue a meritless claim[.]”

Commonwealth v. Hall, 867 A.2d 619, 632 (Pa.Super. 2005), appeal

denied, 895 A.2d 549 (Pa. 2006).

          After a thorough review of the record, including the briefs of the

parties, the applicable law, and the well-reasoned opinion of the PCRA court,

it is our determination that appellant’s ineffectiveness claims warrant no

relief.    The PCRA court comprehensively discussed the ten ineffectiveness

claims briefed by appellant and concluded that they were either meritless or

not properly developed.     (See PCRA court opinion, 6/28/16 at 6-15.)       We

have reviewed the record in its entirety and have considered the merit of

appellant’s arguments. Following our careful consideration, we find that the

PCRA court’s conclusions are supported by competent evidence and are

clearly free of legal error. Accordingly, we adopt the PCRA court’s June 28,

2016 opinion as our own.5



5
  We recognize that in addressing appellant’s claim that his counsel was
ineffective for failing to investigate, find, and call character witnesses on his
behalf, the PCRA court indicated that appellant failed to attach to his petition
an affidavit from each possible witness. (See PCRA court opinion, 6/28/16
at 11.) However, in Commonwealth v. Pander, 100 A.3d 626, 640-642
(Pa.Super. 2014) (en banc), this court held that a request for an
evidentiary hearing under the PCRA did not require affidavits from
witnesses. Rather, this court held that statements from a pro se petitioner
or his attorney as to the substance of each witness’s testimony would satisfy
the PCRA.      Notwithstanding the PCRA court’s error, we find that the


                                      -9-
J. S20023/17


      Based on the foregoing, we affirm the PCRA court’s December 4, 2015

order dismissing appellant’s petition.

      Order affirmed.



      Ott, J. joins this Memorandum.

      Bowes, J. concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/27/2017




dismissal of appellant’s claim was proper given the fact that appellant has
provided no statements of any potential witnesses.


                                     - 10 -
                                                                                            Circulated 05/30/2017 09:41 AM




           IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                           CRIMINAL TRIAL DIVISION


COMMONWEAL TH OF PENNSYLVANIA                                              CP-51-CR-0015549-2010


                          CP-51-CR-0015549-2010   Comm v. Collins. Malik
               v.                           Opuuoo                         SUPERIOR COURT


MALIK COLLINS                  1111111111111111111111111                   3815 EDA 2015
                                       7466315421


                                                      OPINION

Byrd, J.                                                                                           June 28, 2016

       On November 26, 2012, a jury convicted petitioner Malik Collins of first-degree murder,

criminal conspiracy, and possessing instruments of crime (PIC). On that date, petitioner was

sentenced to life imprisonment without the possibility of parole, with a consecutive term of

imprisonment for twenty-two and one-half (22 Yl) to fifty (50) years. On November 28, 2012,

petitioner filed a notice of appeal to the Superior Court. On May 9, 2013, this court filed an opinion

in accordance with Pennsylvania Rule of Appellate Procedure 1925(a). The Superior Court

affirmed petitioner's judgment of sentence on November 7, 2013. On May 13, 2014, his petition

for allowance of appeal was denied by the Supreme Court.

       On December 2, 2014, petitioner filed a pro se petition seeking relief under the Post

Conviction Relief Act ("PCRA"). Shortly thereafter, Stephen T. O'Hanlon, Esquire was appointed

as counsel. On August 10, 2015, appointed counsel filed a letter in accordance with

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). After reviewing counsel's Finley letter

and independently determining that there were no meritorious issues, this court issued a notice of

intent to dismiss on October 30, 2015. This court also granted counsel's motion to withdraw. The

                                                                                   FILED
                                                                                     JUN 2 8 2016

Commw. v. Malik Collins                              Page 1 of 15
                                                                                Criminal Appeals Unit
                                                                              First Judicial District of PA
petition was formally dismissed on December 4, 2015. On December 10, 2015, petitioner filed a

                                                                                         1
pro se notice of appeal. Here, petitioner has raised the following issues:

             1.     Trial counsel Mr. Michael E. Wallace who subsequentl was
                    petitioner(s) appellate counsel rendered ineffective assistance where
                    counsel "failed" to thoroughly investigate and challenge probable
                    cause.

             2.     Trial counsel Mr. Wallace was ineffective, where counsel "failed"
                    to object, argue and (raise) the Commonwealth re-charging
                    petitioner without arrest, or Miranda-warning(s).

             3.     Trial counsel was ineffective, where the Court had manifestly
                    abused it(s) discretion inasmuch as to deny petitioner an arrest of
                    judgment in regard to the conviction for murder in the [first] degree,
                    and possessing an instrument of crime, and criminal conspiracy,
                    where the evidence introduced was based on speculation and pure
                    conjecture.

             4.     Trial counsel Mr. Wallace rendered ineffective, where counsel, in
                    his deficient performance "failed" to challenge, and preserved the
                    Commonwealth(s),         prosecutorial    misconduct    where      the
                    Commonwealth failed to [ est]ablish the required and necessary men
                    rea to have [est]ablished that petitioner had committed [first] degree
                    murder and related charge[s].

             5.     Trial counsel Mr. Wallace was ineffective where counsel had failed
                    to raise and preserve the Commonwealth(s) witnesse(s) testimony
                    being inconsistent and of perjury.

             6.     Trial counsel Mr. Wallace rendered ineffective where counsel did
                    "not" properly cross-examine the Commonwealth(s)               witness
                    Clarence Milton, who(s) testimony was based of perjury of what he
                    had observed in reference to petitioner being the shooter, in which
                    if counsel would have investigated; the true tier of [fact] would have
                    demonstrated that the Commonwealth(s) witness, Clarence Milton
                    was incarcerated on the [date] of the "alleged" crime on;
                    [ 1 Oil 0/2005].

             7.     Trial counsel Mr. Wallace was ineffective for failing to investigate,
                    find and call character and defense witness, Willie Bell, who was
                    incarcerated in the Philadelphia County prison(s) of CFCF on the
                    [date] Clarence Milton testified too that he had observed the
                    petitioner shoot the victim on the [date] of, [ l Oil 0/05].

I   The following is a verbatim recitation of the issues raised in defendant's prose PCRA petition.



Commw. v. Malik Collins                               Page 2 of 15
        8.    Trial counsel, Mr. Wallace was ineffective at trial where counsel
              failed to raise and preserve witness Jose Brigg(s), who(s) testimony
              was; "the petitioner" was not at the scene of the (said] crime.
              Subsequently, this was the reason the case got dismissed the first
              time.

        9.    Trial counsel Mr. Wallace, who was appellate counsel rendered
              ineffective representation where on appellate [review], counsel had
              "not" [raised] the forewith [issie]. Mr. Wallace had [raised] one
              single [issue].

        10.   Trial/appellate counsel Mr. Wallace rendered ineffective at
              appellate [review] where he had erroneously lied by stating at his
              [mae] and filed brief stating; Jose Brigg(s) stated petitioner was
              present at the murder. when the testimony of Mr. Brig[s] was
              opposite and the charge]s] were initially dismissed.


                                  ST A TEMENT OFF ACTS

      The following facts were summarized in this court's May 9, 2013       l 925(a) opinion:


                       On October 10, 2005, at approximately 8:42 p.m.,
              Philadelphia Police Officers Pollack and Hand received a report of
              a shooting at 201h and Diamond Streets in Philadelphia. (N.T.,
              11/20/12 pp. 51-52).     Upon arrival, they found decedent Hassan
              Bentley lying in front of 2046 N. 20th Street with multiple gunshot
              wounds to the head and buttocks.           (N.T., 11/20/12 p. 52).
              Eyewitnesses Jose Briggs and Clarence Milton testified at trial about
              their observations of defendant and accomplices. Specifically, Jose
              Briggs, a resident of2046 N. 20th Street, testified that he, along with
              several other people including Clarence Milton, Steve Brown and
              Mr. Bentley, had been outside on the street engaged in drug activity.
              (N. T., 11120/12 pp. 91-92, 196). Positioned at the entrance to the
              alleyway which opened up next to 2046 N. 20th Street, Mr. Milton
              was able to see who entered and exited the block from both
              directions, as well as anyone present in the driveway.            (N.T.,
              11/20/12 p. 223). Clarence Martin observed Vincent Segers, also
              known as "Waters," driving a blue-green Grand Cherokee through
              the section of 20th Street where everyone was gathered. (N.T.,
              11/20/12 p. 192). A man identified as Yaku Walls, also known as
              "P.L.," was in the front passenger seat and defendant Malik Collins
              was in the backseat of the vehicle as it drove up 20th Street and
              paused in the middle of the block at 20th and Page before turning
              the comer. (N.T., 11/20/12 p. 198).


Commw. v. Malik Collins                    Page 3 of 15
                         Mr. Segers had previously spoken to Mr. Milton about
                 resuming drug sales in that area, but was told that he was not
                 welcome on that corner, as Mr. Milton, Mr. Brown and Mr. Bentley
                 were conducting their business there. (N.T., 11/20/12 pp. 217-19).
                 A few minutes after Mr. Segers drove through the crowded block,
                 Mr. Milton observed defendant and Mr. Walls emerge from the
                 driveway wearing baseball caps and dickey suits. (N.T., 11/20/12
                 p. 204). Mr. Bentley emerged from the alleyway, walking right
                 behind Mr. Brown, as defendant and his accomplice approached and
                 fired a barrage of bullets toward everyone standing outside. (N.T.,
                 11/20/12 p. 204). Mr. Briggs, standing at the base of the steps in
                 front of his home, observed a man dressed in all black, wearing a
                 black baseball cap with a gold "P" emblazoned on the front and
                 pulled down low on his face, walk from the driveway and open fire
                 before he fled on foot. (N.T., 11/20/12 pp. 94-96). Everyone in the
                 area ran away when the shots rang out and they later gathered around
                 the home of Mr. Brown. (N.T., 11/20/12 p. 98). The group quickly
                 realized that Steve Brown suffered a gunshot wound to his arm and
                 that Mr. Bentley was no longer among them. (N.T., 11/20/12 pp.
                 99, 204). Several people returned to that area to find Mr. Bentley
                 dying and police officers on the scene. (N.T., 11/20/12 p. 99).
                 Officers arrived on the scene within minutes of the shooting, and
                 noticed shell casings on the ground from at least two (2) different
                 caliber weapons, a .9 millimeter and a .22 caliber, in the area where
                 Mr. Bentley was slain. (N.T., 11/21/22 p. 111). It was pouring rain
                 that evening, however officers subsequently recovered fired
                 cartridge casings from a . 9 millimeter handgun, but they were unable
                 to find any .22 caliber casings. (N.T., 11/21/12 p. 113).
                         On December 16, 2005, Mr. Briggs gave a statement to
                 police, wherein he described the shooter as a black male, about 5'9",
                 who weighed about 140-165 pounds, brown complexion, about 22-
                 years-old, but was unable to identify the perpetrator. (N.T.,
                 11/20/12 p. 104). Without additional witnesses, this matter became
                 a "cold case" and remained unsolved for many years. Between June
                 and September of 2008, while facing state and federal charges,
                 Clarence Milton came forward with information. (N.T., 11/20/12
                 pp. 185). Mr. Milton identified defendant as the shooter and gave a
                 statement to police outlining the events that led to Mr. Bentley's
                 death. (N.T., 11/20/12 pp. 185-90). Based on this information,
                 police interviewed Mr. Briggs again, and on October 2, 2008, he was
                 shown a photographic array wherein he identified defendant as the
                 shooter. (N.T., 11/21/12 pp. 156, 161).2 In that interview, Mr.

2At trial, Mr. Briggs denied that he in fact signed the photo array. (N.T., 11/20/12 p. 126). However, Detective
Kelhower, who took Mr. Briggs's statement, testified to his identification. (N.T., 11/21/12 p. 161). The jury was
given the opportunity to view the signatures above and below the photographs on the array and determine Mr. Briggs's
credibility regarding his denial.


Commw. v. Malik Collins                           Page 4 of 15
               Briggs went on to state that Mr. Brown was the intended target,
               purportedly in retaliation for a separate shooting allegedly
               committed by Mr. Brown. (N.T., 11/21/12 p. 157). Based on the
               information gathered during the investigation, an arrest warrant for
               defendant was prepared by Detective Kelhower and defendant was
               arrested on January 21, 2010. (N.T. 11/21/12 p. 183).


                                          DISCUSSION

       The Post Conviction Relief Act ("PCRA") affords collateral relief to those individuals

convicted of crimes they did not commit and to those serving illegal sentences. 42 Pa. C.S. § 9542.

Claims pursuant to the PCRA are extraordinary assertions that the judicial system failed, however,

they are not merely direct appeal claims that are made at a later stage of the judicial proceedings.

Commonwealth v. Rivers, 567 Pa. 239, 786 A.2d 923 (2001). A petitioner is entitled to file all

PCRA petitions, including second and subsequent petitions within one ( 1) year from the date

petitioner's judgment of sentence becomes final. 42 Pa. C.S. § 9545(b)(I); 42 Pa. C.S. §

9545(b)(3). A petitioner is eligible for relief under the PCRA if he proves by a preponderance of

the evidence that his conviction or sentence resulted from one or more of the enumerated

circumstances found at 42 Pa. C.S. § 9543(a)(2) (setting forth the eligibility requirements of the

PCRA). Commonwealth v. Ligons, 601 Pa. 103, 971 A.2d 1125 (2009).

       A petitioner may be entitled to relief under the PCRA if he is able to plead and prove that

a conviction or sentence resulted from ineffective assistance of counsel which, in the

circumstances of the particular case, so undermined the truth-determining process that no reliable

adjudication of guilt or innocence could have taken place. 42 Pa. C.S. § 9543(a)(2)(ii). It is the

ineffectiveness claim, not the underlying error at trial, which is reviewed. See Commonwealth v.

Clayton, 572 Pa. 395, 816 A.2d 217 (2002). Under the PCRA, an allegation of ineffective

assistance of counsel amounts to constitutional malpractice where counsel's incompetence




Commw. v. Malik Collins                    Page 5 of 15
deprived a defendant of his Sixth Amendment right to counsel. See Strickland v. Washington, 466

U.S. 668 (1984); Commonwealth v. Williams, 566 Pa. 553, 782 A.2d 517 (2001).

       The law requires the presumption that counsel was effective unless the petitioner can fulfill

his burden and prove otherwise. See Commonwealth v. Payne, 794 A.2d 902 (Pa. Super. 2002).

To prevail on an ineffective assistance of counsel claim, petitioner bears the burden of

demonstrating: "(l ) the underlying claim is of arguable merit; (2) that counsel had no reasonable

strategic basis for his or her action or inaction; and (3) but for the errors and omissions of counsel,

there is a reasonable probability that the outcome of the proceedings would have been different."

Commonwealth v. Kersteter, 877 A.2d 466, 468 (Pa. Super 2006). Furthermore, counsel's choices

cannot be evaluated in hindsight, but rather should be examined in light of the circumstances at

that time. See Commonwealth v. Hardcastle, 549 Pa. 450, 701 A.2d 541 ( 1997). Even if there

was no reasonable basis for counsel's course of conduct, a petitioner is not entitled to relief if he

fails to demonstrate prejudice. See Commonwealth v. Douglas, 537 Pa. 588, 645 A.2d 226 (1994).

       In this case, petitioner first claims that trial counsel was ineffective for failing "to

thoroughly investigate and challenge probable cause." Petitioner's December 2, 2014 PCRA

Petition. However, there was probable cause to arrest Collins based on evidence obtained from

eyewitnesses who were present when the shooting occurred. In Commonwealth v. Rogers, 615

A.2d 55 (Pa. Super. 1992), the court explained that "[tjhe test in this Commonwealth for

determining whether probable cause exists for the issuance of an arrest warrant is the 'totality of

the circumstances.' " Id. at 62 (citing Illinois v. Gates, 462 U.S. 213 (1983). The court further

noted that "[i]n determining whether probable cause exists, a magistrate is not required to find a

showing of criminal activity; mere probability of such criminal activity is sufficient for probable

cause." Id. (citing Commonwealth v. Gray, 469 A.2d 169, 173 (Pa. Super. 1983)). Moreover, "the




Commw. v. Malik Collins                      Page 6 of 15
information   offered to demonstrate    probable cause must be viewed in "a common sense,

nontechnical, ungrudging and positive manner." Id. (citing Commonwealth v. Jones, 506 Pa. 262,

484 A.2d 1383 (1984)). Clarence Milton identified Collins as the shooter to police. (N.T.,

11/20/2012,   at 202-205, 228-229). Jose Briggs identified Collins as the shooter to police. (N.T.,

11/20/2012, at 118, 121; 11/21/2012, at 161). Michael Fontaine stated that Collins was riding in

a car in the area where the shooting took place. (N.T., 11/21/2012,   at 94-95, 175). Further, Selena

Mack gave a description of the shooter that matched Collins's physical appearance. Id. at 183.

See also Commonwealth v. Irving, 485 Pa. 596, 601, 403 A.2d 549, 551 (1979) (holding that

"[t]here is a substantial basis for crediting the information of an eyewitness" in determining the

existence of probable cause). Thus, petitioner's claim lacks arguable merit.

        Petitioner's second claim is that trial counsel was ineffective for failing to "object and

preserve the Commonwealth's re-charging petitioner without arrest or Miranda warnings given."

Petitioner's December 2, 2014 PCRA Petition. In relation to Miranda warnings:

         To safeguard an uncounseled individual's Fifth Amendment privilege against
         self-incrimination, suspects subject to custodial interrogation by law
         enforcement officers must be warned that they have the right to remain silent,
         that anything they say may be used against them in court, and that they are
         entitled to the presence of an attorney. Juveniles, as well as adults, are entitled
         to be apprised of their constitutional rights pursuant to Miranda. If a person is
         not advised of his Miranda rights prior to custodial interrogation by law
         enforcement officers, evidence resulting from such interrogation cannot be used
         against him. A person is deemed to be in custody for Miranda purposes when
         [he] is physically denied of his freedom of action in any significant way or is
         placed in a situation in which he reasonably believes that his freedom of action
         or movement is restricted by the interrogation.
In re R.H., 568 Pa. 1, 5-6, 791 A.2d 331, 333 (2002) (plurality) (citations and quotation omitted).

        In this case, the record does not reflect that any statement was elicited from petitioner.

Thus, petitioner was not prejudiced as a result of counsel's alleged inaction because there was no




Commw. v. Malik Collins                     Page 7 of 15
action that would have achieved a favorable result to petitioner in this context. Accordingly,

petitioner's claim is without merit.

       Petitioner's   third claim is that trial counsel rendered ineffective assistance of counsel

"where the Court had manifestly abused its discretion-inasmuch    as to deny petitioner an 'arrest of

judgment' in regard to the conviction for murder in the first-degree, and possessing an instrument

of crime, and criminal conspiracy, where the evidence introduced was based on speculation and

conjecture." Petitioner's December 2, 2014 PCRA Petition. In ruling on a motion in arrest of

judgment, the court must evaluate the sufficiency of the evidence.          See Commonwealth v.

Meadows, 471 Pa. 201, 369 A.2d 1266 (1977). In evaluating whether the evidence was sufficient

to sustain a conviction, the appellate court "must view the evidence in the light most favorable to

the Commonwealth as verdict winner, accept as true all the evidence and all reasonable inferences

upon which, if believed, the jury could properly have based its verdict, and determine whether

such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt."

Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979).         In applying this test, "the

entire record must be evaluated and all evidence actually received must be considered."

Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001) (quoting Commonwealth v.

Hennigan, 753 A.2d 245, 253 (Pa. Super. 2000)). In Commonwealth v. Costa-Hernandez, 802

A.2d 671, 675 (Pa. Super. 2002), the court recognized that the "question of any doubt regarding

the facts and circumstances established by the Commonwealth is for the fact-finder to resolve

unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can

be drawn from the combined circumstances." The appellate court may not weigh the evidence and

substitute its judgment for the fact-finder. Commonwealth v. Taylor, 831 A.2d 661 (Pa. Super.

2003). Further, "it is for the fact finder to make credibility determinations, and the finder of fact




Commw. v. Malik Collins                     Page 8 of 15
may believe all, part or none of a witness's testimony."        Commonwealth v. Mack, 850 A.2d 690,

693 (Pa. Super. 2004).

        This issue was decided by the Superior Court when it affirmed petitioner's              judgment of

sentence on November 7, 2013.           Indeed, the Superior Court reviewed petitioner's          sufficiency

claims on appeal and determined that the Commonwealth presented sufficient evidence proving

beyond a reasonable         doubt Collins was guilty of committing        first-degree     murder, criminal

conspiracy, and possessing an instrument of crime. See Superior Court November 7, 2013, Docket

No. 3300 EDA 2012.          In Commonwealth v. Howard, 553 Pa. 226, 280-281, 719 A.2d 233, 240

( 1998), the court held that a petitioner "is precluded from raising a claim of post-conviction review

that was previously and finally litigated on direct appeal .... Further, an appellant cannot obtain

collateral review of previously litigated claims by alleging ineffective assistance of prior counsel

and presenting new theories of relief." In light of the Superior Court's affirmance of petitioner's

judgment of sentence, there is no basis for the contention that the conviction                was based on

speculation or conjecture. Therefore, petitioner's claim of ineffectiveness         has no merit and must

be rejected.

        Petitioner's     fourth claim is that trial counsel was ineffective for failing "to challenge, and

preserve the Commonwealth's          'prosecutorial misconduct,' where the Commonwealth had 'failed'

to establish the required and necessary mens rea to have demonstrated                    that petitioner   had

committed Murder in the First-Degree and related charges."               Petitioner's    December 2, 2014

PCRA Petition.         "It is well-settled that counsel is presumed to be effective .... " Commonwealth

v. Busanet, 618 Pa. 1, 18, 54 A.3d 35, 45 (2012).        In Commonwealth v. Wharton, 571 Pa. 85, 86,

811 A.2d 978, 986 (2002), the court noted that "[ c [laims of ineffective assistance of counsel are

not self-proving; thus, appellant's undeveloped arguments respecting counsel are insufficient to




Commw. v. Malik Collins                         Page 9 of 15
prove an entitlement to relief." These are arguably three separate claims that petitioner has failed

to develop. There is no basis in the record that any prosecutorial misconduct occurred. Therefore,

trial counsel was not ineffective for failing to challenge the prosecutor's alleged misconduct.

Accordingly, petitioner's claim has no basis in fact.

         Petitioner's fifth claim is that trial counsel was ineffective for failure "to raise and preserve

the Commonwealth's        witnesses'    testimonies being inconsistent      and of perjury." Petitioner's

December 2, 2014 PCRA Petition. There is no support in the record for this claim. Trial counsel

thoroughly cross-examined the witnesses. Jose Briggs was cross-examined               for over twenty (20)

pages as reflected in the notes of testimony.       (N.T., 11/20/2012, at 130-147, 157-158).      Clarence

Milton was also cross-examined         extensively as to inconsistency,   bias, and motive to lie. (N.T.,

11/20/2012,   at 215-252,    254-255, 256-257).        Indeed, all the Commonwealth        witnesses were

similarly aggressively cross-examined.        As petitioner's   claim is factually incorrect, it is without

merit.

         Petitioner's sixth claim is that trial counsel was ineffective for failing to "properly cross-

examine the Commonwealth's        witness Clarence Milton, whose testimony was based on perjury of

what he observed to petitioner being the shooter, which if counsel would have investigated; the

true trier of fact would have demonstrated that the Commonwealth's               witness, Mr. Milton was

incarcerated on the date of the crime." Petitioner's December 2, 2014 PCRA Petition.            Again, this

claim is factually incorrect.     The record shows that Clarence Milton was extensively cross-

examined as to inconsistency, bias, and motive to lie. Id. Further, petitioner has failed to develop

this claim. See Wharton. Therefore, petitioner's sixth claim is without merit.

         Petitioner's seventh claim is that trial counsel was ineffective for failing "to investigate,

find and call character witnesses, particularly Willie Bell, who was incarcerated in the Philadelphia




Commw. v. Malik Collins                        Page 10 of 15
County Prisons at, CFCF on the date that Clarence Milton testified too that he had observed the

petitioner 'shoot' the victim." Petitioner's   December 2, 2014 PCRA Petition. Counsel is obliged

to '"conduct a prompt investigation      of the circumstances of the case and explore all avenues

leading to facts relevant to guilt."'   Commonwealth v. McCaskill, 468 A.2d 472, 478 (Pa. Super.

1983) (quoting American Bar Association, Standards for the Defense Function§ 4-4.1 (approved

1979)). However, "trial counsel's failure to conduct a more thorough investigation or to interview

all potential witnesses does not constitute a per se ineffectiveness." Commonwealth v. Wallace,

500 A.2d 816, 818 (Pa. Super. 1985). In Commonwealth v. Peterkin, 511 Pa. 299, 319, 513 A.2d

373, 383 (1986), the court explained that the "[t]he reasonableness of counsel's investigative

decisions depends critically on the information supplied by the defendant." To prove that counsel

was ineffective for failing to call a witness, petitioner must show: "(1) the witness existed; (2) the

witness was available to testify for the defense; (3) counsel knew of, or should have known of, the

existence of the witness; (4) the witness was willing to testify for the defense; and (5) the absence

of the testimony of the witness was so prejudicial as to have denied [appellant] a fair trial."

Commonwealth v. Thomas, 615 Pa. 477, 496, 44 A.3d 12, 23 (2012) (quoting Commonwealth v.

Johnson, 600 Pa. 329, 351, 66 A.2d 523, 536 (2009)). Accordingly, petitioner has not properly

established this claim. Indeed, petitioner did not attach affidavits from any proffered character

witness to his petition. As a result, his claim is a bald assertion of ineffectiveness as he has failed

to meet any of the five prongs. See Commonwealth v. Carter, 661 A.2d 390, 396 (Pa. Super. 1995)

(holding that "[i]neffectiveness for failing to call a witness will not be found where a defendant

fails to provide affidavits from the alleged witnesses").

        Additionally, trial counsel was not ineffective for failing to call character witnesses because

petitioner has a criminal record, does not have "good character," and there is nothing on the record




Commw. v. Malik Collins                        Page 11 of 15
indicating petitioner    wished to call character witnesses at trial. As counsel stated in his Finley

letter, petitioner had prior criminal convictions, including four murder convictions.3 Thus, this

evidence would have refuted any claim that Collins was a non-violent and law-abiding individual.

Petitioner also did not establish any evidence of good character in his petition. Additionally, when

defense counsel informed this court of his failed attempt to locate witnesses and that he would rest

without calling said witnesses, this court conducted a colloquy of petitioner who participated but

did not state he intended to call any character witnesses. Instead, petitioner confirmed that he

would rest his case without calling any witnesses. (N.T., 11/26/2012, at 4-12).                   Accordingly,

petitioner has failed to demonstrate that, but for trial counsel's failure to call character witnesses

there is a reasonable probability that the outcome of the jury trial would have been different. See

Kersteter, 877 A.2d at 468. Therefore, trial counsel was not ineffective for failing to call character

witnesses.

        Petitioner's eighth claim is that trial counsel was ineffective for failing "to raise and

preserve the Commonwealth's witness, Jose Briggs, whose testimony was; 'that Malik Collins,

Petitioner was not at the scene of the crime.'"        Petitioner's December 2, 2014 PCRA Petition. In

Commonwealth v. Reid, 533 Pa. 508, 626 A.2d 118 (1993), the Supreme Court restated the

following:

          In Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986), we held that
          otherwise admissible prior inconsistent statements of a declarant who is a
          witness in a judicial proceeding and is available for cross-examination may be
          used as substantive evidence to prove the truth of the matters asserted therein.
          Id. at 131, 507 A.2d at 70. We set forth in Commonwealth v. Lively, [530] Pa.
          [464], 610 A.2d 7, also decided today, that otherwise admissible prior
          inconsistent statements were limited to a statement that had been given under
          oath at a formal legal proceeding; or a statement that had been reduced to a

3
  See CP-51-CR-0011195-2007 (convicted of first-degree murder on September 18, 2008); CP-51-CR-0005885-2007
(convicted of first-degree murder on October 23, 2008); CP-51-CR-0004480-20 IO ( convicted of first-degree murder
on August 24, 2011); CP-51-CR-0004481-2010 (convicted of first-degree murder on August 24, 2011).


Commw. v. Malik Collins                         Page 12 of 15
          wntmg  signed and adopted by the witness; or a statement that is a
          contemporaneous verbatim recording of the witness' statement.
Id., 533 Pa. at 514, 626 A.2d at 121 (quoting Commonwealth v. Burgos, 530 Pa. 473, 478, 610

A.2d 11, 14 (1992)).

         In this case, Jose Briggs was subjected to direct examination and cross-examination

concerning his statement to police and his identification of Collins in a photographic array. In

Commonwealth v. Doa, 5 53 A.2d 416, 422 (Pa. Super. 1989), the court held that there was no error

in admitting the witnesses' prior identifications of the defendant notwithstanding their failure to

identify the defendant at trial. At trial, Jose Briggs denied signing this photographic array and

claimed that he did not know the identity of the person who shot decedent. Id. As a result of Jose

Briggs's recantation, his statement identifying Collins as the shooter from a photographic array

was read to the jury.      (N.T., 11/20/12, at 106-126). Further, the Commonwealth presented

Detective William Kelhower who testified to Jose Briggs's prior identification of the petitioner

from the photographic array. (N.T., 11/21/12,      at 153-64). See Commonwealth v. Brady, 510 Pa.

123, 507 A.2d 66 (1986); Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7 (1992). Therefore,

petitioner's claim that trial counsel was ineffective for failing to contest Jose Briggs's recantation

of identification has no merit.

         Next, petitioner claims that trial counsel was ineffective for failing to raise the above issue

on appeal. Here, petitioner claims that trial counsel was ineffective for failing to raise his own

ineffectiveness. In general, trial counsel cannot raise his own ineffectiveness.             See, e.g.,

Commonwealth v. Hughes, 581 Pa. 274, 865 A.2d 761 (2004). Accordingly, this claim is without

merit.

         Finally, petitioner claims that trial counsel was ineffective at appellate review "where

counsel had lied in Appellate Brief, stating that 'Jose Briggs had saw Mr. Milton at the Murder



Commw. v. Malik Collins                      Page 13 of 15
when testimony     by Mr. Briggs was quite opposite           and where the charges were initially

dismissed.' " Petitioner's December 2, 2014 PCRA Petition. Petitioner's tenth claim is without

merit because it is unintelligible and undeveloped. In his petition, Collins fails to logically establish

his claim that trial counsel lied. Therefore, this claim provides no basis for relief under PCRA. See

Commonwealth v. Williams, 557 Pa. 207, 223, 732 A.2d 1167,               1175   (1999) (acknowledging

"unavailability of relief based upon undeveloped claims for which insufficient arguments are

presented on appeal").

        Furthermore, Collins has failed to establish how a different course of action by counsel

would have achieved a different outcome. As the court held in Commonwealth v. Fisher, 572 Pa.

105, 116, 813 A.2d 761, 767 (2002), "[s]peculation by hindsight that a different strategy might

possibly have been successful is not the test which establishes ineffectiveness of counsel." In

Strickland v. Washington, 466 U.S. 668, 689 (1984), the United States Supreme Court instructed

that "[a] fair assessment of attorney performance requires that every effort be made to eliminate

the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged

conduct, and to evaluate the conduct from counsel's perspective at the time." The court has further

declared, "A chosen strategy will not be found to have lacked a reasonable basis unless it is proven

'that an alternative not chosen offered a potential for success substantially greater than the course

actually pursued."' Commonwealth v. Williams, 587 Pa. 304, 312, 899 A.2d 1060, 1064 (2006)

(quoting Commonwealth v. Howard, 553 Pa. 266, 274, 719 A.2d 233, 237 (1998)).

        Even if petitioner had made an arguably meritorious claim, he is still not entitled to relief

because the introduction of any such evidence would not have contributed to a different verdict.

See Commonwealth v. Polk, 500 A.2d 825, 829 (Pa. Super. 1985) (holding that"( c ]ounsel will not

be deemed ineffective for failing to assert a defense that would not have been beneficial or for




Commw. v. Malik Collins                      Page 14 of 15
failing to interview witnesses whose testimony would not have been helpful").              Indeed, the

evidence that the Commonwealth adduced at trial proved beyond a reasonable doubt that Collins

was guilty of the crimes for which he was convicted. Nothing about prior counsel's representation

or trial strategy would have changed this outcome. Thus, petitioner was not prejudiced by

counsel's alleged errors. As the court held in Commonwealth v. Albrecht, 554 Pa. 31, 46, 720 A.2d

693, 701 (1998), "[i]f it is clear that [petitioner] 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."

Consequently, Collins is not entitled to PCRA relief under any of the ineffectiveness of counsel

claims raised in his petition. Moreover, there is no basis for Collins's claim that this court abused

its discretion. This court acted within the bounds of the law and rendered its decisions throughout

the course of this case only after careful consideration of counsel's arguments and an independent

review of the record, pleadings, and applicable law.

        Thus, based on the foregoing, it follows that Collins's ineffectiveness of counsel claims

must fail. See Commonwealth v. Hall, 582 Pa. 526, 872 A.2d 1177 (2005) (holding that three-

prong standard for reviewing ineffectiveness claims applies to the performance of counsel at any

level of representation); Busanet, 572 Pa. at 545, 817 A.2d at 1066 (ruling that "failure to satisfy

any prong of the test for ineffectiveness will require rejection of the claim").

        Accordingly, for the foregoing reasons, the dismissal of petitioner's PCRA petition should

be AFFIRMED.

                                                                        BY THE COURT,




Commw. v. Malik Collins                     Page 15 of 15
