J-E02011-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

RALPH OMAR WILLIAMS,

                         Appellant                  No. 1523 WDA 2012


                 Appeal from the PCRA Order June 6, 2012
            In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0014098-2005


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, SHOGAN, ALLEN,
        OTT, WECHT, STABILE, and JENKINS, JJ.

MEMORANDUM BY BOWES, J.:                      FILED SEPTEMBER 22, 2014

      Ralph Omar Williams appeals pro se from the June 6, 2012 order

denying his first counseled PCRA petition after the court permitted counsel to

withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),

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

(“Turner/Finley”). After careful review, we affirm.

      A prior panel of this Court outlined the factual and procedural history

of this matter as follows.

      In the early morning hours of August 18, 2005, David McWright
      was shot and killed on a Wilkinsburg street. Eugenia Mathis,
      David McWright’s mother, subsequently received information
      which led her to believe Williams was involved in the shooting.
      Four days later, on August 22, 2005, Mathis, her daughters—
      Velvet Atkins and Ebony McWright, and five nieces were
      traveling to David McWright’s wake in Atkins’ vehicle when they
      spotted Williams on Center Street. Mathis, who was driving at
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       the time, slammed on the brakes and a number of the women
       inside, including Ebony McWright, exited the vehicle and began
       chasing after Williams. The women who remained in the vehicle
       circled the area while Williams sought refuge.

              Williams eventually made his way to Franklin Avenue,
       which runs in an east-west direction approximately two blocks
       north from the Kelly Elementary School in Wilkinsburg. See
       generally, N.T., 6/13/06, at 32. Both the group of women
       giving chase on foot and the group of women giving chase in
       Atkins’ vehicle quickly converged on Williams, eventually
       spotting him at the corner of Franklin Avenue and Pitt Street, the
       latter of which runs in a north-south direction. Id. Atkins, who
       was driving at this point, parked the vehicle on Rebecca Avenue,
       approximately one block south of the Franklin-Pitt intersection,
       exited the vehicle, and positioned herself on the corner of
       Rebecca and Pitt. Id. Ebony McWright and the women with her,
       who originally had spotted Williams from their position on the
       corner of Pitt Street and Kelly Avenue, proceeded north on Pitt
       Street, away from Kelly Avenue and towards the Rebecca-Pitt
       intersection, to confront Williams. Id. at 44. As the women
       proceeded up Pitt Street, Williams and his accomplices began
       walking down Pitt Street towards the Rebecca-Pitt intersection.
       Id. at 24, 33, 44.       McWright and the others immediately
       recognized Williams was armed with a handgun. Atkins sought
       refuge in her vehicle, while McWright and the others with her
       turned to flee. Id. at 33. Atkins watched as Williams and his
       companions crossed Rebecca Avenue running south on Pitt
       Street. Id. According to Atkins, Williams, after crossing Rebecca
       Avenue, backed up towards Franklin Avenue and let off a torrent
       of gun fire. Id. at 33, 34-35, 36. Miraculously, no one was
       injured.[1] At some point during the melee, Mathis called the
       police.

             On August 25, 2005, the Commonwealth filed a criminal
       information charging Williams with eight counts of aggravated
       assault, eight counts of aggravated assault with a deadly
       weapon, eight counts of REAP, and one count of criminal
       conspiracy. On June 13, 2006, Williams appeared for a bench
____________________________________________


1
  Eight shell casings were recovered from two parts of the scene.           Six
casings were fired from one weapon and two from a second gun.



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       trial. At the conclusion of the Commonwealth’s case, Williams
       moved to dismiss five of the aggravated assault and five of the
       aggravated assault with deadly weapon charges, five of the REAP
       charges, and the criminal conspiracy charge. The trial court
       granted the motion due to the Commonwealth’s failure to
       produce Mathis’ five nieces, the respective victims for which
       these charges were assessed. N.T., 6/13/06, at 59-61. The
       granting of Williams’ motion left nine charges pending—three
       counts of aggravated assault, three counts of aggravated assault
       with a deadly weapon, and three counts of REAP.

              At the conclusion of trial, the trial court found Williams
       guilty of aggravated assault and aggravated assault with a
       deadly weapon against McWright and of recklessly endangering
       Mathis, Atkins, and McWright. On August 14, 2006, Williams
       filed a written motion for extraordinary relief requesting the trial
       court either arrest judgment on all five convictions rendered,
       enter a judgment of acquittal as to the convictions, or,
       alternatively, grant a new trial.[2]

              On August 17, 2006, Williams appeared for sentencing at
       which time the court, having reviewed [Williams’] motion for
       relief filed under Pa.R.Crim.P. 704(B), arrested judgment on
       Williams’ aggravated assault and aggravated assault with a
       deadly weapon convictions, as well as the conviction for
       recklessly assaulting Mathis. See N.T., 8/17/06, at 2. Despite
       the arrests of judgment, Williams then bitterly complained about
       his attorney’s trial performance. When the attorney suggested
       the trial court appoint a new attorney to handle post-sentencing
       matters, the trial court, obviously persuaded by Williams’
       bellicose complaints and without prompting, responded:

              Well, I think under the circumstances what I’ll do is
              I’ll grant him a new trial on the two [REAP] charges.
              So, we’ll arrest judgment on the aggravated assaults
              and one [REAP], and we’ll grant a new trial on the
              two [REAP] charges.


____________________________________________


2
  The original panel later pointed out that a written motion for extraordinary
relief is improper.



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       N.T. at 10. The formal Order arresting judgments and granting
       a new trial was entered on August 21, 2006.

Commonwealth v. Williams, 959 A.2d 976 (Pa.Super. 2008) (unpublished

memorandum) (footnotes omitted).

       The Commonwealth timely appealed and Appellant filed a timely cross-

appeal.    This Court consolidated the cases and reversed the trial court’s

order of a new trial. We further rejected Appellant’s sufficiency and weight

claims as to two counts of recklessly endangering another person pertaining

to Velvet Atkins and Ebony McWright.             The panel declined to rule on

Appellant’s sufficiency claims for his aggravated assault, aggravated assault

with a deadly weapon, and remaining REAP convictions, reasoning that it

was without jurisdiction because the trial court had not granted a new trial

on those claims and had erroneously discharged Appellant. The panel added

that Appellant could appeal those convictions following sentencing.

       Thereafter, the matter was remanded to the trial court for sentencing.

At sentencing, Appellant was represented by two new attorneys. The court

imposed a sentence of five to ten years incarceration.3       Appellant filed a

timely pro se notice of appeal. The court directed Appellant to file a pro se

____________________________________________


3
   The court imposed a mandatory minimum sentence based on a firearm
being involved. Appellant does not raise any challenge to his sentence
relative to the firearm mandatory. Importantly, the Supreme Court in its
Alleyne v. United States, 133 S.Ct. 2151 (2013) decision did not hold that
its decision, implicating the constitutionality of mandatory minimum
statutes, applied retroactively to cases on collateral review.



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concise statement. Appellant served his concise statement on the trial court

but did not file it.   The court later docketed that statement and issued its

opinion. This Court, recognizing that Appellant was entitled to counsel for

purposes of his direct appeal if he was in forma pauperis, entered a per

curiam order directing the trial court to determine if Appellant was entitled

to counsel.     Subsequently, the court appointed Attorney Scott Coffey to

represent Appellant on appeal. A panel of this Court deferred resolving four

ineffectiveness claims until PCRA review, rejected his remaining claims, and

affirmed.     Commonwealth v. Williams, 23 A.3d 589 (Pa.Super. 2010)

(unpublished memorandum).           The Pennsylvania Supreme Court denied

Appellant’s    petition   for   allowance    of   appeal   on   May   23,   2011.

Commonwealth v. Williams, 21 A.3d 1194 (Pa. 2011).

      Appellant filed a pro se PCRA petition, and requested that the court re-

appoint Attorney Coffey. The court obliged. On May 22, 2012, counsel filed

a petition to withdraw and a lengthy and detailed Turner/Finley no-merit

letter. The court granted counsel’s motion to withdraw and simultaneously

issued a notice of dismissal on June 6, 2012. Appellant responded, and, for

the first time, provided unsigned witness certifications written by himself for

six witnesses. Four of these witnesses had not been identified by Appellant

in his pro se petition.

      The PCRA court dismissed Appellant’s petition on July 9, 2012.

Appellant incorrectly mailed his pro se notice of appeal to the Pennsylvania


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Supreme      Court’s    western     district   Prothonotary.   The   High   Court’s

prothonotary received the notice on August 3, 2012; hence, the appeal is

timely.    Thereafter, the Supreme Court Prothonotory hand delivered the

notice of appeal to the appropriate filing office, which docketed the notice of

appeal on August 13, 2012.

        The PCRA court directed Appellant to file and serve a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal on October 15,

2012.     The order was mailed to Appellant, however, it was returned and

Appellant did not file a concise statement.4 The court filed a statement in

lieu of an opinion. The original panel in this matter sua sponte requested en

banc review, which we granted. The matter is now ready for disposition.

        Although Appellant’s brief fails to comply with our rules of appellate

procedure for briefing, and it is difficult to understand his precise positions

due to his spelling and grammatical troubles, we overlook these defects

because we can glean the issues and arguments that he seeks to advance.

Appellant raises the following issues for our review, which we have reworded

for the sake of clarity:

        1. Was Appellant’s trial counsel ineffective for not conducting a
           pre-trial investigation and by placing a gun in Appellant’s
           hand by arguing that Appellant acted in self-defense where
           petitioner asserted an alibi? Were sentencing counsel, cross
____________________________________________


4
 The Commonwealth does not argue that Appellant’s issues are waived and,
as it is apparent that Appellant did not receive the order, we decline to find
waiver.



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          appeal counsel, direct appeal counsel, and PCRA counsel
          ineffective for not filing a post-sentence motion and
          presenting relevant arguments and evidence in such a
          motion?

       2. Was the evidence against Appellant insufficient to convict him
          of aggravated assault—attempted serious bodily injury,
          aggravated assault—attempt with a deadly weapon, and
          reckless endangerment of another person (“REAP”) where
          there was no credited testimony or adequate circumstantial
          evidence to establish that he fired a gun?

       3. Did the incident happen the way the witnesses stated it? Was
          Appellant the person who the eyewitness described with a
          gun? Was the eyewitness the aggressor?

See Appellant’s brief at 5.5


____________________________________________


5
    Appellant’s issues verbatim are as follows:

       1. Was Appellant counsel ineffective at the trail [sic] stage for
          not investigating before trail [sic], and putting a gun in the
          hands of appellant arguing [sic] self defense when petitioner
          told him he was not there. Is sentencing stage, cross appeal
          stage[,] direct appeal stage, PCRA stage counsel[,] ineffective
          for not filing a post sentance [sic] motion. For not being [sic]
          up any of the relavant [sic] arugemnets [sic] to the lower
          courts at all with the evidence on record in a post sentance
          [sic] motion. As request at sentencing hearing.

       2. Was the evidence against Appellant insufficient to convict
          him of 18 Pa.C.S. § 2702(a)(1) Attempted serior [sic] bodily
          injury aggravated, of 18 PA.C.S. § 2702(a)(4) attempted
          deadly weapon aggravated assault, and of 18 PA.C.S. § 2705
          REckless endangerment, given that there was no credited
          testimony or adequate circumstantial evidence astablishing
          [sic] that Appellant was tha [sic] person who fired a gun.

       3. Did the incident happen the way the witness stated it. Was it
          the Appellant the person who the eye witness discride [sic]
(Footnote Continued Next Page)


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        In conducting review of a PCRA matter, we consider the record “in the

light   most    favorable     to   the    prevailing   party   at   the   PCRA   level.”

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

Our review is limited to the evidence of record and the factual findings of the

PCRA court. Id.         This Court will afford “great deference to the factual

findings of the PCRA court and will not disturb those findings unless they

have no support in the record.” Id. Thus, when a PCRA court’s ruling is free

of legal error and is supported by record evidence, we will not disturb its

decision.    Id.   Of course, if the issue pertains to a question of law, “our

standard of review is de novo and our scope of review is plenary.” Id.

        Appellant’s initial multi-layered claim pertains to the effectiveness of

his various attorneys.         We comprehensively discussed the law regarding

such claims in Commonwealth v. Stewart, 84 A.3d 701 (Pa.Super. 2013)

(en banc). Therein, we opined:

           “To plead and prove ineffective assistance of counsel a
        petitioner must establish: (1) that the underlying issue has
        arguable merit; (2) counsel's actions lacked an objective
        reasonable basis; and (3) actual prejudice resulted from
        counsel's act or failure to act.” Commonwealth v. Chmiel, 612
        Pa. 333, 30 A.3d 1111, 1127 (2011). Where the petitioner “fails
        to plead or meet any elements of the above-cited test, his claim
        must fail.” Commonwealth v. Burkett, 5 A.3d 1260, 1272
        (Pa.Super. 2010).

                       _______________________
(Footnote Continued)

            with a gun.     was it the eye witness the one’s who was the
            aggressor.




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                A claim has arguable merit where the factual averments, if
         accurate, could establish cause for relief. See Commonwealth
         v. Jones, 583 Pa. 130, 876 A.2d 380, 385 (2005) (“if a
         petitioner raises allegations, which, even if accepted as true, do
         not establish the underlying claim ..., he or she will have failed
         to establish the arguable merit prong related to the claim”).
         Whether the “facts rise to the level of arguable merit is a legal
         determination.” Commonwealth v. Saranchak, 581 Pa. 490,
         866 A.2d 292, 304 n. 14 (2005).

               The test for deciding whether counsel had a reasonable
         basis for his action or inaction is whether no competent counsel
         would have chosen that action or inaction, or, the alternative,
         not chosen, offered a significantly greater potential chance of
         success. Commonwealth v. Colavita, 606 Pa. 1, 993 A.2d 874
         (2010). Counsel's decisions will be considered reasonable if they
         effectuated his client's interests. Commonwealth v. Miller,
         605 Pa. 1, 987 A.2d 638 (2009). We do not employ a hindsight
         analysis in comparing trial counsel's actions with other efforts he
         may have taken. Id. at 653.

               “Prejudice is established if there is a reasonable probability
         that, but for counsel's errors, the result of the proceeding would
         have been different. Commonwealth v. Steele, 599 Pa. 341,
         961 A.2d 786, 797 (2008). A reasonable probability ‘is a
         probability sufficient to undermine confidence in the outcome.’
         Commonwealth v. Rathfon, 899 A.2d 365, 370 (Pa.Super.
         2006).” Burkett, supra at 1272; Strickland v. Washington,
         466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Stewart, supra at 706-707.

         Appellant’s initial position is that trial counsel was ineffective for

presenting a self-defense argument in the alternative to Appellant’s alibi

defense where Appellant’s witnesses testified that he could not have fired

the shots.      Specifically, Iesha Williams and Tianesja Washington testified

that Appellant was inside Ms. Williams’ home at the time the shots were

fired.    Ms. Williams is Appellant’s sister and Ms. Washington is his first


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cousin.   In addition, counsel presented a stipulation that Sylvia Ashby,

Appellant’s mother, would testify that Appellant was inside Ms. Williams’

residence at the time of the shooting.        However, during trial counsel’s

closing statement, he set forth that even if the trial court believed the

testimony of the Commonwealth’s witnesses, their testimony “presented a

scenario for what we call self-defense[.]” N.T., 6/13/06, at 75.

      The Commonwealth responds that trial counsel did present Appellant’s

alibi defense and, in the alternative, argued that Appellant should be found

not guilty even if the court disbelieved Appellant’s witnesses.       Thus, it

maintains that counsel could not be ineffective. We agree. The record does

not establish that trial counsel placed the gun in Appellant’s hand. Rather,

trial counsel mounted an alibi defense.      In his closing, counsel suggested

that even if the court were to disbelieve the alibi testimony, the

Commonwealth’s evidence did not prove that Appellant committed the

crimes in question. Trial counsel’s position in this latter respect was based

on Appellant’s diminutive size and the fact that there were seven or eight

women who were much larger, chasing him.

      Here, the evidence that placed the gun in Appellant’s hand came from

the Commonwealth’s witnesses. Trial counsel did not stipulate or admit that

Appellant possessed a gun.     Instead, he posed an argument that, if the

Commonwealth’s witnesses were believed, any firing of a gun did not

constitute the crimes charged. Presenting argument in favor of one’s client


                                    - 10 -
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based on an interpretation of the evidence is not ineffective assistance of

counsel.

       Next, Appellant posits that trial counsel was ineffective for not

interviewing or presenting several eyewitnesses. This aspect of Appellant’s

argument is thoroughly undeveloped and fails for this reason alone.          See

Steele, supra. Appellant does not identify in his brief who these witnesses

were or proffer the substance of their testimony. He does not maintain in

his brief that these witnesses were available or willing to testify. In his pro

se petition, Appellant did mention the name of two witnesses, Paul

Hutchinson and Kelly Coldren.6            His petition listed addresses for these

witnesses, but did not offer any other information relative to their proposed

testimony. Nonetheless, PCRA counsel in his no-merit letter imprecisely set

forth, “Defendant does not indicate the identity of these witnesses or

exculpatory evidence, or what the witnesses may have testified to, or that

[t]rial [c]ounsel was aware of their existence or proposed testimony.”

Turner/Finley no-merit letter, 5/22/12, at 13.

       Subsequently, in Appellant’s response to the PCRA court’s notice of

intent to dismiss, Appellant provided the names of three additional

eyewitnesses, Jacquelyn Nija, Amanda Johnson, and Kiesha Moon. He also

____________________________________________


6
   Appellant also referenced his sister, Iesha Willaims, and Tianesja
Washington, both of whom testified at trial. See Pro se petition, 2/3/12, at
6. Appellant in his petition spelled Ms. Washington’s name as Taneja.



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alleged that trial counsel should have presented the testimony of an

unnamed 911 operator.             Appellant’s response to the Rule 907 notice

provided some substance of the named witnesses’ testimony.

       The Commonwealth replies that as to the 911 operator, the tape of the

call was played at trial and any testimony would have been cumulative and

superfluous. It adds that the proffers as to Ms. Moon and Ms. Johnson are

“too vague to permit a conclusion that they would have had useful testimony

to offer.”7   Commonwealth’s brief at 22. The Commonwealth continues that

Mr. Hutchinson’s and Ms. Nija’s proposed testimony related to information

regarding a white car fleeing from the scene, and that Officer Larry Langham

testified at trial that police had received that information.     Specifically,

Officer Langham testified that he received information that black males in a

white vehicle had opened fire, N.T. 6/13/06, at 57-58, and that an individual

reported that he saw a white car with a Texas license plate fleeing and

“believed this car had been shot at[.]” Id. at 53.        Since the proposed

testimony is cumulative of evidence already introduced, the Commonwealth

submits that trial counsel cannot be ineffective.
____________________________________________


7
   Appellant’s proffer as to Ms. Johnson is in total, “Identified as an
eyewitness to the shooting. [W]ould have testified that I was not involved.”
Petitioner’s post-hearing brief, 10/9/12, at 24 (this filing was Appellant’s
response to counsel’s no-merit letter and the court’s notice of dismissal. It
is unpaginated in part; accordingly, we have assigned the page number).
Similarly, Appellant’s bare bones offer of proof as to Ms. Moon is that she
“Would have testified as to what she saw and heard, corroborating my alibi
witnesses.” Id. at 25.



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      Here, Appellant’s claim is two-fold, that counsel was ineffective in not

investigating and interviewing witnesses and in failing to present those

witnesses. Neglecting to call a witness and failing to investigate a witness

are distinct but interrelated claims.      See     Stewart, supra at 712.        The

failure to investigate “presents an issue of arguable merit where the record

demonstrates that counsel did not perform an investigation.” Id. “It can be

unreasonable per se to conduct no investigation into known witnesses.” Id.

Importantly, a petitioner still must demonstrate prejudice. Id.                   To

demonstrate prejudice where the allegation is the failure to interview a

witness, the petitioner must show that there is a reasonable probability that

the testimony the witness would have provided would have led to a different

outcome at trial.       Commonwealth v. Dennis, 950 A.2d 945, 961 (Pa.

2008).

      In this respect, a failure to investigate and interview a witness claim

overlaps with declining to call a witness since the petitioner must prove: (i)

the witness existed; (ii) the witness was available to testify; (iii) counsel

knew of, or should have known of, the existence of the witness; (iv) the

witness was willing to testify; and (v) the absence of the testimony was so

prejudicial   as   to   have   denied    the     defendant   a   fair   trial.   See

Commonwealth v. Dennis, 17 A.3d 297, 302 (Pa. 2011) (discussing failure

to interview and call an alibi witness).




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       Appellant’s argument fails for myriad reasons. First, he has failed to

develop his argument on the issue. See Steele, supra. Second, he did not

indicate in his pro se petition the names of three of the witnesses he

proffered after counsel was permitted to withdraw.         Thus, he could only

preserve this aspect of his claim by arguing both in his response to his 907

notice, and on appeal, that PCRA counsel was ineffective in not discussing

the matter with Appellant to learn of these witnesses. Cf. Commonwealth

v. Rykard, 55 A.3d 1177 (Pa.Super. 2012). Appellant has not leveled any

argument on appeal that PCRA counsel should have included witness

certifications for these additional witnesses or that Appellant told him of

these witnesses and their proffered testimony.8             Further, Appellant’s

proffers as to Ms. Moon and Ms. Johnson do not suggest that they would

have offered testimony different from that of Appellant’s actual witnesses,


____________________________________________


8
   We recently addressed a conflict between Commonwealth v. Brown,
767 A.2d 576 (Pa.Super. 2001), and Commonwealth v. McLaurin, 45 A.3d
1131 (Pa.Super. 2012), on whether a defendant must submit witness
certifications or affidavits to be entitled to an evidentiary hearing for failure-
to-present-witness claims.       See Commonwealth v. Pander, 2014 PA
Super 201 (en banc). In doing so, we rejected the McLaurin panel’s
holding on the issue and held that witness certifications, including pro se
certifications authored by the petitioner, may be sufficient.          Instantly,
Appellant filed unsigned witness certifications that he authored after PCRA
counsel was permitted to withdraw. Neither party discusses or argues these
cases, nor did the PCRA court rely on McLaurin or Brown to reject
Appellant’s position. Thus, it would be improper to deny relief based on any
perceived certification defect.           See Pander, supra; see also
Commonwealth v. Robinson, 947 A.2d 710, 711 (Pa. 2008) (per curiam).



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and we agree with the Commonwealth that these offers of proof are

insufficient to warrant a finding of prejudice.

       As to Mr. Hutchinson and Ms. Nija, the Commonwealth is correct that

the testimony Appellant indicates that they would provide is substantially

similar to evidence that was introduced at trial.            Not only did Officer

Langham testify as to the white car, so did Ms. Washington. Thus, Appellant

cannot establish prejudice.       With respect to the 911 operator, the issue fails

for similar reasons.        Since the 911 tape was introduced at trial, any

testimony by the operator would have been cumulative and unnecessary.

Trial counsel could not be ineffective for failing to call this witness.      This

leaves Ms. Coldren.         Ms. Coldren’s proposed testimony, as set forth in

Appellant’s response to the court’s Rule 907 notice of dismissal, is that she

witnessed twenty-five people in the area of the shooting, all but two of

whom were males and that two men were carrying handguns.9                     This

evidence actually contradicts Appellant’s defense at trial insofar as his sister

and cousin testified to the presence of numerous women, namely, the family

that testified against Appellant. Further, the Commonwealth’s evidence did

reveal that two separate firearms had been fired in the area and Ms. Mathis

testified that more than one person was shooting.            See 6/13/06, at 12
____________________________________________


9
  Appellant presented a similar argument in complaining about trial counsel
immediately after his trial. There, he referred to the witness as Kelly
Goldrin, and that this woman saw five men with handguns. This was the
point in which the trial court erroneously sua sponte awarded a new trial.



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(“They was shooting.”); id. at 26 (“They was shooting at the girls.”).

Ms. Mathis’ daughters, however, only testified to seeing Appellant with a

gun.

       As discussed, Appellant did reference Ms. Coldren in his pro se

petition, and the trial record before his PCRA filings reveals what he believed

her testimony would have been. Nonetheless, Appellant does not attempt to

show prejudice in his brief, nor is the evidence itself exculpatory. Assuming

Ms. Coldren did not see Appellant with a weapon and observed two different

individuals with guns does not ipso facto mean that Appellant did not have

or fire a gun.    Moreover, the proffer as to seeing only males is highly

inconsistent with the testimony of the remaining witnesses, including

Appellant’s own defense witnesses.      In this respect, Ms. Williams testified

that a woman standing by a black truck had a handgun and that a group of

women were in the area. Ms. Washington testified that she observed girls

with three guys and that the shooting emanated from a white car. Appellant

has failed to demonstrate that he is entitled to relief.

       Appellant also argues that trial counsel was ineffective for stipulating

that Appellant’s mother’s testimony would be substantially similar to that of

his prior two witnesses. Again, Appellant does not meaningfully develop this

claim.   For this reason alone his issue would fail.       See Steele, supra.

Furthermore, his position is entirely without merit.        Appellant does not

suggest that his mother’s testimony would have been different from his


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witnesses.   Allowing Appellant’s mother to testify would only have added

testimony already received by the court; accordingly, stipulating to the

introduction of what his mother would state is not ineffective assistance of

counsel.

      Additionally, Appellant maintains that trial counsel was ineffective for

not orally seeking a motion for extraordinary relief based on insufficient

evidence. He also, in boilerplate fashion, alleges that cross appeal appellate

counsel was ineffective for not pursuing trial counsel’s ineffectiveness.   In

one sentence, he also avers that sentencing counsel were ineffective for not

filing a post-sentence motion. Lastly, he asserts that direct appeal counsel

was ineffective for not litigating a post-sentence motion. These issues each

are underdeveloped, waived, and lack arguable merit.

     While ineffectiveness claims are distinct from the underlying merits of

the claims from which they are derived; see Commonwealth v. Collins,

888 A.2d 564 (Pa. 2005), an ineffectiveness issue fails where the merits-

based position is without merit.   See id.   This Court previously concluded

that Appellant’s convictions were supported by sufficient evidence.     Thus,

trial counsel cannot be ineffective for not arguing a sufficiency claim in an

oral motion for extraordinary relief.         Further, an oral motion for

extraordinary relief is not the appropriate mechanism for advancing run-of-

the-mill sufficiency of the evidence arguments.




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      Next, cross-appeal counsel cannot be ineffective for not litigating the

effectiveness of trial counsel during that appeal because our Supreme Court

has held that such claims must be deferred to PCRA review absent certain

conditions not pertinent herein. See Commonwealth v. Grant, 813 A.2d

726 (Pa. 2002). In regards to sentencing counsel, Appellant does not even

attempt to articulate any argument as to what manner his attorneys were

ineffective. As to direct appeal counsel, Appellant suggests that he should

have litigated trial counsel’s ineffectiveness via the Commonwealth v.

Bomar, 826 A.2d 831 (Pa. 2003) exception to Grant, supra.                 However,

counsel was not appointed until after the filing of Appellant’s direct appeal.

Hence, he could not have filed such a motion.

      Appellant’s second issue pertains to the sufficiency of the evidence.

These claims were previously litigated during his prior direct appeal;

therefore, they fail.   42 Pa.C.S. § 9544(a).       Appellant’s final issue is not

separately argued in his brief and is intermingled with his arguments as to

his sufficiency positions.     Insofar as Appellant’s arguments concern the

sufficiency of the evidence, they are either previously litigated or waived to

the   extent   he   advances    new   sufficiency   arguments.      For    all   the

aforementioned reasons, we affirm.

      Order affirmed.



Judgment Entered.


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J-E02011-14




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/22/2014




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