J-S77010-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ALFONZO EXUM

                            Appellant                No. 2903 EDA 2013


                Appeal from the Order dated September 29, 2013
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0000678-2008


BEFORE: STABILE, JENKINS, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                       FILED FEBRUARY 09, 2015

        Appellant Alfonzo Exum appeals from the September 29, 2013 order of

the Court of Common Pleas of Philadelphia County, which dismissed without

a hearing his request for collateral relief under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.

        The facts and procedural history in this case are undisputed. As we

have previously recounted:
              On April 25, 2007, at approximately 12:45 p.m., Robert
        Fuel (victim) and his girlfriend Michelle Davis arrived at Tim’s
        Donut Shop (Shop), located at the intersection of North 40th
        Street and Poplar Street in West Philadelphia. Ms. Davis walked
        inside the Shop, at which point she saw [Appellant] and his
        cousin, Deshawn Harris, sitting on a window ledge near the
        entrance of the Shop. Ms. Davis knew the pair from elementary
        school, but they did not greet one another. The victim walked
        into the Shop behind Ms. Davis. Immediately after the victim
        walked in the door, [Appellant] moved from the ledge,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S77010-14


      approached the victim and said “Let me talk to you for a
      minute.” As [Appellant] got up, Mr. Harris left the shop and did
      not return. Both [Appellant] and the victim turned towards the
      door, at which point [Appellant] placed his left arm around the
      victim’s left shoulder, pulled a gun out, and shot the victim twice
      in the head.
      The victim fell to the floor, and [Appellant] left the Shop. Five
      seconds later, [Appellant] came back into the Shop and, from a
      distance of 15 to 20 feet, shot Ms. Davis three times, twice in
      the back and once in the side, while looking directly at her the
      entire time. Before the police arrived, the victim’s brother,
      Howard Fuel, and father, Robert Lewis, arrived at the Shop.
      Howard Fuel had been walking down Poplar Street near the Shop
      when the shooting occurred. As he was walking down the street,
      Howard Fuel heard shots coming from the direction of the Shop.
      He turned and looked at the Shop and saw [Appellant] run out
      the door “tucking a gun,” then turn and run back inside the
      Shop. He heard more gunshots, then saw [Appellant] run out of
      the [Shop] and down the street. The victim was pronounced
      dead by paramedics at 12:48 p.m.
             One bullet, which was determined to be between .40 and
      .45 caliber, was recovered from the Shop. Two bullets of the
      same caliber were recovered from the victim. All three bullets
      were lead, and all three bullets had “knurled cannelure.” These
      are both characteristics that are most commonly seen in revolver
      bullets. [(The revolver used in this crime was not recovered.)]
             Ms. Davis identified [Appellant] as the shooter to both the
      first officer at the scene and to the 911 operator on a call by the
      Shop’s owner. [Appellant] was arrested on May 23, 2007.

Commonwealth v. Exum, No. 3135 EDA 2009, unpublished memorandum

(Pa. Super. filed August 24, 2010) (quoting the trial court’s January 11,

2010, opinion) (internal record citations and footnotes omitted).

             On May 19, 2009, following a non-jury trial before the
      [trial court], [Appellant] was convicted of murder of the first
      degree (H-1), attempted murder (F-1), aggravated assault
      (F-1), carrying firearms on public streets or public property in
      Philadelphia (M-1), possessing instruments of crime (PIC) (M-1),
      and recklessly endangering another person (REAP) (M-2). That
      same date, [the trial court] sentenced [Appellant] to the
      mandatory term of life imprisonment.         On May 27, 2009,
      [Appellant] filed post-sentence motions, which [the trial court]
      denied on September 24, 2009.            On October 22, 2009,
      [Appellant] filed a timely notice of appeal. On August 24, 2010,
      the Superior Court affirmed [Appellant’s] judgment of sentence.
      On September 14, 2010, [Appellant] filed a petition for
      allowance of appeal, which our Supreme Court denied on March
      9, 2011.

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J-S77010-14


             On November 2, 2011, [Appellant] filed a pro se petition
      pursuant to the [PCRA]. Counsel was appointed on March 16,
      2012. . . . On August 27, 2013, [the PCRA court] sent
      [Appellant] a notice pursuant to Pa.R.Crim.P. 907 (907 Notice)
      of its intent to deny and dismiss his PCRA petition without a
      hearing. [Appellant] did not respond to [the PCRA court’s] 907
      Notice; on September 27, 2013, [the PCRA court] dismissed
      [Appellant’s] petition. On October 22, 2013, [Appellant] filed a
      timely notice of appeal to the Superior Court.
             On October 24, 2013, [Appellant] was ordered to file of
      record and serve on the [PCRA] judge a “Statement of Matters
      Complained of on Appeal” pursuant to Pa.R.A.P. 1925(b)
      (1925(b) statement) no later than 21 days after the entry of the
      order. PCRA counsel failed to comply with [the PCRA court’s]
      order; however, on December 31, 2013, PCRA counsel applied to
      the Superior Court to remand the appeal to the [PCRA court] in
      order that he might file a timely 1925(b) statement. On January
      21, 2014, the Superior Court remanded this matter to [the PCRA
      court] for a period of 60 days. The Superior Court directed PCRA
      counsel to file and serve a 1925(b) statement within 21 days of
      the date of the order. PCRA counsel again failed to comply
      within the allotted time. Thereafter, [Appellant] filed a pro se
      request for the appointment of substitute counsel. On March 31,
      2014, the Superior Court granted [Appellant’s] application for
      substitute counsel pursuant to Commonwealth v. McDaniels,
      785 A.2d 120 (Pa. Super. 2001) (remanding a case for the
      appointment of substitute counsel where the original attorney
      was either unwilling or unable to competently represent his
      client).
           On April 1, 2014, [the PCRA court] removed PCRA counsel
      and appointed a new attorney to represent [Appellant]. On May
      5, 2014, the Superior Court again remanded this matter to [the
      PCRA court] for 60 days with instructions to PCRA counsel to file
      and serve a 1925(b) statement within 21 days.

PCRA Court Opinion, 6/9/14, at 1-3 (internal footnotes omitted). Appellant

filed a Pa.R.A.P. 1925(b) statement in which he raised eight assertions of

error, namely: (1) trial counsel was ineffective for advising Appellant to

waive a jury trial; (2) trial counsel was ineffective for advising and coercing

Appellant to testify at trial; (3) trial counsel was ineffective for failing to file

and litigate a motion to suppress [Appellant’s] statement; (4) trial counsel

was ineffective for failing to interview and present as a defense witness



                                       -3-
J-S77010-14



Deshawn Harris at Appellant’s trial; (5) trial counsel was ineffective for

failing to interview and present as defense witnesses Kalesha and Moesha

Doe at Appellant’s trial; (6) the Commonwealth failed to provide to Appellant

a videotape recording of the incident at the Shop in violation of Appellant’s

constitutional rights; (7) direct appeal counsel was ineffective for conceding

[Appellant’s] guilt in the appellate brief; and (8) previous post-conviction

counsel was ineffective for failing to raise a claim that his trial and appellate

counsels   were   ineffective   for   failing   to   challenge    meaningfully   the

Commonwealth’s case at trial or on direct appeal.

      The PCRA court filed a 1925(a) opinion, addressing Appellant’s claims

seriatim. With respect to Appellant’s first two assertions of error, the PCRA

court concluded, based on the oral colloquy, that they lacked arguable merit.

The trial court determined Appellant knowingly, intelligently and voluntarily

waived his right to a jury trial and that Appellant’s statements under oath

belied his contention that he was coerced to testify at his trial. With respect

to Appellant’s third assertion of error, the PCRA court also concluded that it

lacked arguable merit.    Specifically, the PCRA court reasoned “[Appellant]

did not respond to [the PCRA court’s] 907 Notice, nor did he specify, in his

1925(b) statement, the basis upon which he claimed that his statement to

detectives should have been suppressed.” Id. at 12.

      Combining Appellant’s fourth and fifth assertions of error, the PCRA

court determined the issue lacked merit because Appellant “personally

decided not to present any witnesses.”               Id. at 13.    With regard to

                                       -4-
J-S77010-14



Appellant’s sixth assertion of error, the PCRA court determined that

Appellant’s PCRA counsel “effectively withdr[ew] this claim.”       Id. at 14.

Accordingly, the PCRA court concluded “[a]s PCRA counsel conceded that the

purported videotape did not contain exculpatory or impeaching evidence

favorable to [Appellant], [Appellant] failed to raise a colorable Brady[1]

claim.” Id. Finally, with respect to Appellant’s last two assertions of error,

the PCRA court reasoned that those claims were waived because Appellant

asserted them for the first time in his 1925(b) statement.

        On appeal,2 Appellant repeats the same claims.3 After careful review

of the parties’ briefs, the record on appeal, and the relevant case law, we

conclude that the PCRA court’s Rule 1925(a) opinion authored by the

Honorable M. Teresa Sarmina adequately disposes of Appellant’s issues on
____________________________________________


1
    Brady v. Maryland, 373 U.S. 83 (1963).
2
  “In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determination ‘is supported by the record and free of legal error.’”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).
3
   To the extent Appellant argues that his direct appeal counsel was
ineffective by conceding Appellant’s guilt in the appellate brief or that his
former PCRA counsel was ineffective for failing to raise the ineffectiveness of
Appellant’s trial or direct appeal counsels, such arguments are waived. As
the trial court aptly noted, Appellant did not preserve the arguments for
appellate review because he failed to raise them below.                      See
Pa.R.A.P. 302(a). Appellant’s claim of ineffectiveness by PCRA counsel also
must fail because he raises it for the first time on appeal.                 See
Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en banc)
(citations omitted) (noting that it is well-established that allegations of PCRA
counsel’s ineffectiveness cannot be brought for the first time on PCRA
appeal), appeal denied, 101 A.3d 785 (Pa. 2014).



                                           -5-
J-S77010-14



appeal. See PCRA Court Opinion, 6/9/14, at 5-14. We, therefore, affirm the

PCRA court’s order dismissing Appellant’s PCRA petition without a hearing.

We direct that a copy of the trial court’s June 9, 2014 Rule 1925(a) opinion

be attached to any future filings in this case.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2015




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                             PHILADELPHIA COURT OF COMMON PLEAS
                                   CRIMINAL TRIAL DIVISION

    COMMONWEALTH
                                                                                          CP-51-CR-000067S-200S

                      v.                                                                  Superior Court Docket No.
                                          CP-51-CR-OOOO678_2008 ~omm_ v. EXlIm, Alfonzo   2903 EDA 2013
                                                             Opinion


    ALFONZO EXUM
                                                I
                                              II 11111111 III /11111" III
                                                       7160202161
    Sarmina, J.
    June 9, 2014
                                                                                                FILED
                                                                                                  JUN () I} 2014
                                                                                           . Crimin~l. Appeals Unit
PROCEDURAL HISTORY                                                                        First Judicial District of PA
            On May 19, 2009, following a non-jUlY trial' before this Court, Alfonzo Exum (hereafter,

petitioner) was convicted of murder of the ftrst degree (H-1), attempted murder (F-1), aggravated

assault (F-1), canying firearms on public streets or public property in Philadelphia (M-1), possessing

instruments of crime (PIC) (M-1), and recklessly endangering another person (REAP) (1'v!_2).2 That

same date, this Court sentenced petitioner to the mandatory term' of life imprisonment.' On May

27,2009, petitioner filed post-sentence motions, which this Court denied on September 24, 2009 5

On October 22, 2009, petitioner filed a timely notice of appeal. On Augnst 24, 2010, the Superior



I   Petitioner was represented by GregolT Pagano, Esquire, at triaL

218 Pa.C.S. §§ 2502(a), 901(a), 2702(a), 6108, 907(a), and 2705,       respectively .

.118 Pa.C.S. § 1102(a)(1).

4 As to the conviction for attempted murder, this Court sentenced petitioner to a concurrent term of not less than ten
years not more than 30 years imprisonment. As to the conviction for carrying firearms on public streets or public
property in Philadelphia, this Court sentenced petitioner to a concurrent term of not less than one year nor more than
five rears imprisonment. As to the conviction for PIC, tllls Court sentenced petitioner to a concurrent term of not less
than one year nor more than five years imprisonment. Petitioner's convictions for aggravated assault and REi\P merged
for sentencing purposes. Notes of Testimony (N.T.) 5/19/2009 at 180-81.

j Prior to the resolutjon of the defendant's post-sentence motions, this Court appojnted David Rudcnstein, Esquire, to

represent the defendant on direct appeal.
                                                                                             Circulated 01/28/2015 12:04 PM




Court affirmed petitioner's judgments of sentence.' On September 14, 2010, petitioner f1led a

petition for allowance of appeal, which our Supreme Court denied on March 9, 2011 7

            On November 2, 2011, petitioner f1led a pm se petition pursuant to the Post Conviction

Relief Act (PCRA).' Counsel was appointed' on March 16,2012. Subsequent to Mr. Kauffman's

appointment, petitioner f1led two pm se briefs and, on December 14, 2012, f1led a Motion to Relieve

Counsel and Notice of Intention to Proceed Pm Se. On February 25, 2013, this Court held a

Grazier lO hearing to determine whether petitioner knowingly, intelligently and voluntarily was

waiving his right to representation. At the Grazier hearing, petitioner expressly withdrew his request

to proceed pm se. N.T. 2/25/2013 at 1-6. On April 26, 2013, PCRA counsel f1led an amended

petition on petitioner's behalf, to which the Commonwealth responded on June 27, 2013. On

August 27, 2013, this Court sent petitioner notice pursuant to Pa.R.Crim.P. 907 (907 Notice) of its

intent to deny and dismiss his PCRA petition without a hearing. Petitioner did not respond to this

Court's 907 Notice; on September 27, 2013, this Court dismissed petitioner's petition. On October

22,2013, petitioner filed a timely notice of appeal to the Superior Court.

            On October 24, 2013, petitioner was ordered to file of record and serve on the trial judge a

"Statement of Matters Complained of on Appeal" pursuant to Pa.R.A.P. 1925(b) (1925(b)

Statement) no later than 21 days after entry of the order. PCRA counsel failed to comply with this

Court's order; however, on December 31, 2013, PCRA counsel applied to the Superior Court to

remand the appeal to this Court in order that he might file a timely 1925(b) Statement. On January



'Commonwealth v. Exum, No. 3153 EDA 2009, slip op. (pa.Super., Aug. 24, 2010) (memorandum opinion).

7    Commonwealth v. Exum, No. 508 EAL 2010, slip op. (pa., Mar. 9,2011) (memorandum opinion).

842 Pa.C.S. §§ 9541-9546.

9   Earl G. Kauffman, Esquire, was appointed to represent petitioner on collateral attack.

10   Commonwealth v. Grazier, 713 A2d 81 (pa. 1998).


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 21, 2014, the Superior Court remanded this matter to this Court for a period of 60 days. The

 Superior Court directed PCRA counsel to me and serve a 1925(b) Statement within 21 days of the

 date of the order. PCRA counsel again failed to comply within the allotted time. Thereafter,

 petitioner filed a pm se request for the appointment of substitute counsel. On March 31, 2014, the

 Superior Court granted petitioner's application for substitute counsel pursuant to Commonwealth v.

 McDaniels, 785 A.2d 120 (Pa.Super. 2001) (remanding a case for the appointment of substitute

 counsel where the original attorney was either unwilling or unable to competently represent his

client).

             On April 1, 2014, this Court removed PCRA counsel and appointed a new attorney to

represent petitioner.!! On May 5, 2014, the Superior Court again remanded this matter to this Court

for 60 days with instructions to PCRA counsel to me and selve a 1925(b) Statement within 21 days.

PCRA counsel complied with the Superior Court's order.

FACTS!2

            On April 25, 2007, at approximately 12:45 p.m., Robert Fuel (victim) and his girlfriend
            Michelle Davis arrived at Tim's Donut Shop, located at the intersection of North 40'h Street
            and Poplar Street in West Philadelphia. N.T. 5/18/09 at 20-21. Ms. Davis walked inside the
            shop, at which point she saw [petitioner] and his cousin, Deshawn Harris, sitting on a
            window ledge ncar the entrance of the shop. Id. at 25-27. Ms. Davis knew the pair from
            elementary school, but they did not greet one another. Id. at 25, 64-65. The victim walked
            into the shop behind Ms. Davis. Id" at 32. Immediately after the victim walked in the door,
            [petitioner] moved from the ledge, approached the victim and said "Let me talk to you for a
            minute." Id. at 35. As [petitioner] got up, Mr. Harris left the shop and did not return. N.T.
            5/18/09 at 35. Both [petitioner] and the victim turned towards the door, at which point
            [petitioner] placed his left arm around the victim's left shoulder, pulled a gun out, and shot
            the victim twice in the head. Id. at 37-38,88-89.

            The victim fell to the floor, and [petitioner] left the shop. Id, at 38-40. Five seconds later,
            [petitioner] came back into the shop and, from a distance of 15 to 20 feet, shot Ms. Davis
            three times, twice in the back and once in the side, while looking directly at her the entire
            time. 19" at 40-43. Before police arrived, the victim's brother, Howard Fuel, and father,
            Robert Lewis, arrived at the shop. Id. at 47-48. Howard Fuel had been walking down

11   Mitchell S. Stmtin, Esquire, was appointed after ?\Ir. Kauffman was relieved.

12   This Court recites the facts as presented in its January 11, 2009 opinion pursuant to Pa.R.A.P. 1925(a).

                                                               3
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             Poplar Street near the shop when the shooting occurred. N.T. 5/18/09 at 96-104. As he
             was walking down the street, Howard Fuel heard shots coming from the direction of the
             shop. rd. at 109-110. He turned and looked at the shop and saw [petitioner) run out the
             door "tucking a gun," then turn and run back inside the shop. rd. at 110-11, 140. He heard
             more gunshots, then saw [petitioner) run out of the store and down the street. rd. at 115-16.

             The victim was pronounced dead by paramedics at 12:48 p.m. rd. at 87. One bullet, which
             was determined to be between .40 and .45 caliber, was recovered from the shop. N.T.
             5/18/09 at 147. Two bullets of the same caliber were recovered from the victim. rd. at 148-
             149. All three bullets were lead, and all three bullets had "knurled cannelure." rd. at 1 52-55.
             These are both characteristics that are most commonly seen in revolver bullets."

             Ms. Davis identified [petitioner) as the shooter to both the first officer at the scene and to
             the 911 operator on a call placed by the shop's owner. rd. at 46-47,199-200. [petitioner)
             was arrested on May 23, 2007. N.T. 5/19/09 at 24.

 LEGAL ANALYSIS

             Petitioner raises seven claims in his 1925(b) Statement, two of which were not advanced

 during the PCRA litigation before this Court; accordingly, those two claims have been waived. 14

This Court will address petitioner's five other issues m;atim.

        1. Trial counsel was ineffective for advising petitioner to waive his right to a jury trial.

        2. Trial counsel was ineffective for advising and coercing petitioner to testify at trial.

        3. Trial counsel was ineffective for failing to litigate a motion to suppress petitioner's
           statement to police.

        4. Trial counsel was ineffective for failing to interview and present Deshawn Harris,
           Kalesha and Moesha Doe as witnesses in petitioner's defense at trial. 15

       5. The Commonwealth failed to provide a videotape of the scene at Tim's Donut Shop
          to petitioner in violation of his rights under the United States and Pennsylvania
          Constitutions.



U    The firearm used in this crime was not recovered. NT. 5/19/09 at 59.

 l~ In his pleadings, PCRA cOWlsel did not allege that appellate cotUlsel rendered ineffective assistance of counsel by
 conceding the defendant's guilt in his appellate brief, nor did he allege that trial and appellate counsel were ineffective
 for failing to meaningfully challenge the Commonwealth's case at trial or on appeal. Those two claims were raised for
 the first time in petitioner'S 1925(b) Statement and, thus, will not be addressed herein. 1925QJ) Statement, 5/10/2014 at
'1'17-8. "Issues not raised in the lower court are waived and cannot be raised for the first time on appeal." Pa.R.AP.
302(a).

[S   This claim incorporates the fourth and fifth allegations of error as phrased in petitioner's 1925(b) Statement.

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1. Trial counsel was ineffective for advising petitioner to waive his right to a jury trial.

        Petitioner's first claim is that trial counsel was ineffective for advising petitioner to waive his

rightto a jury trial. 1925(b) Statement, 5/10/2014 at '/1. In his amended petition, petitioner alleged

that trial counsel pressured petitioner to waive this right "under duress." Memorandum of Law,

4/26/2013, at 4. Petitioner argued that trial counsel "threatened him with the death penalty if he

took a jUlY trial." Id. "While the Commonwealth stated that they would try the case as a death

penalty case if petitioner chose a jUlY trial, it was up to the petitioner's trial counsel to communicate

tlus to the petitioner without coercing the petitioner to give up his Constitutional right." Id. This

claim failed for two reasons: first, petitioner's colloquy with this Court demonstrated that he fully

understood the essential components of a juty trial, and second, this claim is based on finding that

petitioner lied under oath during his colloquy with this Court. For both reasons, petitioner's claim

lacked arguable merit and failed.

        Although tI,e right to a jUlY trial in crintinal cases is guaranteed by the Sixth Amendment of

the Vluted States Constitution and by Article I, § 9 of the Pennsylvania Constitution, it may

nevertheless be voluntarily waived. Commonwealth v. Kirkland, 195 A.2d 338, 340 (pa. 1963). In

order for the defendant to knowingly waive his right to a jury trial, he/she must be made aware of

three "essential ingredients, which are necessary to understand the significance of the right a

defendant is waiving": (1) that the jUlY would be chosen from members of the community, (2) the

verdict would have to be unanimous, (3) and the accused would be perntitted to participate in the

selection of the jury panel. Commonwealth,v. Hayes, 596 A.2d 874, 876 (pa.Super. 1991).

        When one's waiver of his right to a jury trial is collaterally attacked under the guise of

ineffective assistance of counsel, it "must be analyzed like any other ineffectiveness claim."

Commonwealth v. Malloty, 941 A.2d 686, 698 (Pa. 2008). The analysis must focus on the totality of

relevant circumstances, which includes the defendant's experience with jUlY trials, an explicit written


                                                    5
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waiver, relevant off-the-record discussions with counsel, as well as an on-the-record colloquy with

the court. Commonwealth v. Birdsong, 24 A.3d 319, 339-40 (Pa. 2011). "To prove trial counsel

ineffective, each appellant must show that his understanding of the jury waiver was constitutionally

impaired by his lawyer's deficient performance, as well as proof that he would have elected a jury but

for his lawyer's performance." Mallow, 941 A.2d at 702. In other words, petitioner "must

demonstrate he did not understand what he was waiving; that trial counsel caused his failure to

understand; and that, but for counsel's ineffectiveness, he would have insisted upon a jury."

Birdsong, 24 A.3d at 340.

       The totality of the circumstances revealed that petitioner fully understood the essential

components of a jury trial, and that it was his decision to proceed by bench trial. Not only did

petitioner complete a written waiver but, throughout this Court's colloquy, petitioner also

demonstrated that he was attuned to the questions put to him, and answered intelligendy:

       THE COURT: Good morning, Mr. Exum. I've been advised that you wish to give up your
       right to a jury trial and to proceed to trial; is that correct?
       PETITIONER: Yes, ma'am.
       THE COURT: I'm going to ask you some questions about it, but the first thing I want to tell
       you, Mr. Exum, is that there are three and sometimes four decisions that are for you and you
       alone to make. The first is whether you're going to plead guilty or have a trial. The second
       one is the one that we're talking about right now, which is if you are having a trial whether
       it's going to be a trial before the judge sitting alone or where the judge is sitting with a jury
       but the jury is deciding all of the facts of the case. Where I am sitting alone I would decide
       both the facts and the law. If you were having a jUlY trial, the jury would decide the facts. I
       would still decide the law. Do you understand that?
       PETITIONER: Yes, ma'am.
       THE COURT: And you have an absolute right to have a jUlY trial. The third decision that
       would be for you and you alone to make is, regardless of the kind of trial you have, whether
       you wish to testify or not testify in your case. And the last one is if you are found guilty
       whether you wish to take an appeal or not. Now, wIllie your attorney can give you excellent
       advice about what he thinks you should do and why he thinks you should do it, you're the
       one that has to make the ultimate decision, and that's why we're having this discussion.
       Because you have to live with the consequences of it. So you don't want to later be saying,
       well, 111y attorney shouldn't have told 111e to do this or I wish I hadn't done that. On 111any
       of the other things there arc trial strategy, how to question witnesses, a particular defense to
       take, a certain way to cross-examine some witness, many, many things are trial strategy, and
       those are usually left by and large to the sound judgment and experience of the trial attorney.
       But these decisions are considered much more significant and that you alone should make

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          them after consultation with your attorney. I've had many people come back and say in
          some kind of an appeal or something, my attorney made me take the stand, or my
          attorney wouldn't let me testify. Well I always have these discussions, so maybe the
          person wants to look at it that way, but I always end up having this discussion with
          people so that you know it's your decision alone to make. Do you understand that?
          PETITIONER: Yes, ma'am.
          THE COURT: All right. So we're at the point where you're going to be deciding. And
          you've reviewed a form, is that correct, this four-page written jury trial waiver colloquy
          form? You've reviewed that with Mr. Pagano?
          PEfITIONER: Yes, ma'am.
         THE COURT: Did you understand the questions that were on this form?
         PETITIONER: Yes, ma'am.
         THE COURT: Did you answer them truthfully?
         PETITIONER: Yes, ma'am.
         THE COURT: And do you have any questions about anything you saw on this form at all or
         anything Mr. Pagano said to you about your right to a jury trial?
         PETITIONER: No, ma'am.
         THE COURT: You put your initials at the bottom of the first three pages, and you signed at
         the top of the fourth page?
         PETITIONER: Yes, ma'am.
         THE COURT: And you graduated high school?
         PEI'ITIONER: Yes, ma'am.
         THE COURT: Which one?
         PETITIONER: Overbrook Twilight.
         THE COURT: Overbrook Twilight?
         PETITIONER: Yes ma'am.
         THE COURT: And how long ago did you graduate from there?
         PETITIONER: 2006.
         THE COURT: And you can read, write, and understand the English language?
         PETITIONER: Yes, ma'am.
         THE COURT: Are you today under the influence of any drugs, alcohol, or medication?
         PETITIONER: No, ma'am.
         THE COURT: I'm going to explain for you in greater detail so that I'm satisfied that you
         understand it three aspects of a jury trial that should be covered pretty much in the
         questions, but I want to be satisfied directly that you understand them as well. The first is
         that if you are having a jury trial, Mr. Exum, you would be participating with Mr. Pagano il1
         selecting the jury that would hear and decide tl,e facts of this case. '6 The assistant district
         attorney would also be participating in making that selection. So between questions from
         both sides and from deciding who seemed acceptable or not acceptable, you would end up
         with a total of 12 permanent jurors and two alternates who would only se1ve if one of the 12
         couldn't, and that would be the jury that would hear the facts of the case. Do you
         understand all of that?
         PETITIONER: Yes, ma'am.



16 This portion of the colloquy addressed the third requirement from   ~~~:   that the accused would be permitted to
participate in the selection of the jury panel.


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          THE COURT: You didn't have anything to do with picking me to be the judge that this case
          got assigned to. It just got assigned here from the calendar judge, Judge Lerner, in a
          different courtroom where your case was first listed after you went for arraignment. After
          that's done, like, in a random kind of system and it goes to the different judges that hear
          homicide cases and I got your case. ~ou would participate with Mr. Pagano in selecting
          the jury that would decide the facts of the case. Do you understand that?
          PETITIONER: Yes, ma'am.
         THE COURT: Another very significant difference or aspect of the jUlY system is that a jury
         is considered to be a jUlY of your peers. The peers would be deciding the facts of the case.
          And that is so even if they don't look like you, necessarily, or didn't go to Overbrook, maybe
          didn't graduate high school, some may have, some might not have, some might have
          different kind of jobs than you've had in your past, et cetera. The reason they're considered
          to be a jury of your peers is partly based on the way that they're selected. And thg--,,,,wJ:hal
          they're selected is, basically, a random system from the voter registration rolls of the city ang
         county of I'lWadelphia. And that is that about 500 people come to the Criminal Justice
         Center every single work day, and they're summoned here to do jury duly and so they are
         selected at random. 17 They show up. And from that group of 500 people that's downstairs,
         if we were having your jury trial, a group of 60 people would have been sent up to this
         courtroom for us to question. And so we would go through the questioning. If it took
         more than one panel, more than a group - that's called a pancl- if it took more than 50
         people before you have the 14 people to sit here, the 12 jurors and the two alternates, then
         we would go onto [sic] the second day or to a third day until we did have a jury that both
         sides had selected and felt would be a reasonable, fair, impartial jUlY to hear the facts of the
         case. And both from the way they're summoned to come to the Criminal Justice Center and
         the way they come to the courtroom, it's all a random system that's done by a computer.
         And so because of all of that, they would be considered to be a jury of your peers. Do you
         understand that?
         PETITIONER: Yes, ma'am.
         THE COURT: The last significant difference between a jury trial or an aspect of the jury
         trial that I want you to be aware of is that the 12 jurors that would go back to deliberate after
         the case. was completely finished to see if they thought that the Commonwealth, the district
         attorney's offlce, had proved your gWlt beyond a reasonable doubt, before there. could be a
         verdict, either a verdict of guilty or a verdict of not guilty as to the charges, every single one
         of those 12 jurors would have to agree. 18 So you could not be found not guilty if even one
         person disagreed, just like you could not be found guilty even if one person disagreed. So
         that is the requirement that the jury's decision be unanimous in criminal cases. Do you
         understand that?
         PETITIONER: Yes, ma'am.
         THE COURT: You can see I'm sitting here alone. There's not going to be anybody else to
         decide with. I will decide at the end of the case whether the District Attorney's Offlce has
         proved your guilt beyond a reasonable doubt or not. And if they did, what they proved you
         guilty of. Do you understand that?


17 1111S portion of the colloquy addressed the first requirement from Hayes: that the jury would be chosen from
members of the community.

11:\ This portion of the colloquy addressed the second and final requirement from B~: that the verdict would have to
be unanimous.

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 PETITIONER: Yes, ma'am.
 THE COURT: So if you ended up with a jury that was less than unanimous, that's what's
 called a hung jUlY. Then the District Attorney's Office, after I declared a mistrial, could
 bring you to trial again if they so choose. Do you understand dlat?
 PETITIONER: Yes, ma'am.
 THE COURT: And so from what I've just explained to you, in addition to what you
 reviewed from the four-page written jury trial waiver colloquy form and from the discussions
 that you've had with your attorney about what you wish to do in dus case, at this point do
 you wish to give up your right to a jury trial and to proceed before me sitting without
 a jury, or do you, in fact, wish to have a jury trial?
 PETITIONER: Without a jury.
THE COURT: And did anybody pressure you or force you or threaten you in any way
 to make that decision and give up your right to a jury trial?
PETITIONER: No, ma'am.
THE COURT: Did anybody make you any promises if you do give up your right to a
 jury trial?
PErITIONER: No, ma'am.
THE COURT: Do you understand, Mr. Exum, that regardless of whether it's a jUlY trial or a
judge trial that in all cases where there are crinUnal charges the entire burden of proving you
guilty is upon the assistant district attorney? You don't have any burden whatsoever.
PETITIONER: Yes, ma'am.
THE COURT: And they have to prove your guilt beyond a reasonable doubt whether it's a
jury trial or a judge trial. Do you understand that?
PETITIONER: Yes, ma'am.
THE COURT: Do you have any questions at all for me?
PETITIONER: No, ma'am.
THE COURT: Do you also understand just like when we have the colloquy as to whether or
not you wish to testify or not testify you are bound by the answers that you're giving me
here today? So you can't later say something like I mentioned to you earlier, like, my
attorney told me to answer that way because the judge would be mad, it would take longer if
she had - people have actually written and said those kind [sic] of things - it would have
taken longer, so the judge would have been mad. So if there is anything different to say
today, this is the time to do it, this is the moment to do it. And if you want your jury trial,
that's what I'm here for. I do trials evelY single day, every single week that I'm here in the
Criminal Justice Center and working. So it's a right that you have. And if you want it, you're
entitled to have it. Do you understand that?
PETITIONER: Yes, ma'am.
THE COURT: Do you understand that you are bound by the answers that you give
here today?
PETITIONER: Yes, ma'am.
THE COURT: Okay. So is there anything else you want to add or change your mind
or anything like that?
PE1TfIONER: No, ma'am.
THE COURT: All right. Is there anything else either attorney wanted to place on the record
about the waiver?
MR. PAGANO: No, Your Honor.
ADA McCAFFERTY: No, Your Honor.


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         THE COURT: Then I am making a fInding that Mr. Exum has knowingly, intelligently and
         voluntarily given up his right to have a jury trial and to proceed to trial before me. Who
         made the decision, Mr. Exum, for you to give up your right to a jury trial?
         PETITIONER: I did, ma'am.

 N.T. 5/18/2009 at 5-17 (emphasis added in both bold and underline).

         Petitioner's colloquy revealed that he understood the three "essential ingredients" of a jury

trial and that he elected to waive that right of his own volition. As petitioner's understanding of the

jury waiver was not "constitutionally impaired by his lawyer's defIcient performance," this allegation

of ineffective assistance lacked arguable merit.

        Additionally, petitioner's claim that trial counsel was ineffective for coercing him to waive

his right to a jury trial requires accepting that petitioner lied while under oath. A PCRA petitioner

"may not obtain post-conviction relief by claiming that he lied during his waiver colloquy."

Commonwealth v. Bishop, 645 A.2d 274, 277 (pa.Super. 1994); see also Commonwealth v. Pollard,

832 A.2d 517, 523 (pa.Super. 2003) ("The longstanding rule of Pennsylvania law is that a defendant

may not challenge his [colloquy] by asserting that he lied while under oath, even if he avers that

counsel induced the lies."). As this allegation of ineffective assistance of counsel is predicated on

the notion that petitioner lied during his waiver colloquy, it lacked arguable merit and failed.

2. Trial counsel was ineffective for advising and coercing petitioner to testify at trial.

        Petitioner's second claim is that trial counsel was ineffective for advising petitioner to testify

on his own behalf. 1925(b) Statement, 5/10/2014 at ~ 2. Petitioner averred that trial counsel "put

the petitioner in the untenable position of having to testify on his own behalf, because his own

counsel conceded his guilt. Therefore, the petitioner was forced to admit his shooting of decedent,

Robert Fuel, which led to his conviction of fIrst degree murder." Memorandum of Law, 4/26/2013,

at 5. As petitioner's argument is again rooted in the notion that petitioner lied under oath, this claim

lacks arguable merit and fails.



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         The record reveals that petitioner freely chose to testify at trial. When questioned by this

 Court, petitioner expressly statcd that he made the decision to takc the stand of his own free will:

        THE COURT: Your attorney has indicated that you do wish to testify; is that corrcct?
        PETITIONER: Yes, ma'am.
        THE COURT: And so I'm going to ask you some questions again now. Have you taken any
        drugs, alcohol or medication in the last 12 hours?
        PETITIONER: No, ma'am.
        THE COURT: Can you read and write and understand the English language?
        PETITIONER: Yes, ma'am.
        THE COURT: And so you have discussed with Mr. Pagano your decision about testifying or
        not testifying?
        PETITIONER: Yes, ma'am.
        THE COURT: And once again, I want you to be clear that this is an absolute right that you
        have either to not testify and remain silent or to go ahead and testify and present your
        testimony, and that the decision is yours and yours alone to make. So did anybody pressure
        you or force you or threatcn you in any way to go ahead and testify in this case?
        PETITIONER: No, ma'am.
        THE COURT: Did anybody promise you anything if you do testify?
        PETITIONER: No, ma'am.
        THE COURT: Is the decision to testify being made voluntarily and freely by you?
        PETITIONER: Yes, ma'am.

        THE COURT: Who made the decision for you to testify?
        PETITIONER: I did, ma'am.
        THE COURT: All right. Then I am making a finding that Mr. Exum has knowingly,
        intelligently, and voluntarily personally made the decision to take the stand in this case.

NT. 5/19/2009 at 45-47 (emphasis added).

        Under oath, petitioner stated that he was not pressured, coerced or threatened to take the

witness stand. He was givcn multiple opportunities to voice concerns about trial counsel and his

decision to testify but, instead, knowingly, intelligently and voluntarily chose to testify. As noted

JIIpra, petitioner may not obtain post-conviction rclief by claiming that he lied during a colloquy with

the court. Bishop, 645 A,2d at 277; Pollard, 832 A.2d at 523.

        Additionally, petitioner's argument that hc was coerced to testify because trial counsel had

already conceded his guilt is factually incorrect. Trial counsel's only representation about petitioner's

guilt was made during his dOJing alJ!,umellt, where trial counsel stated that petitioner was not guilty of

more than murder of the third degree. "Judge, for all the reasons I've stated, for the lack of

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 evidence in this case and the evidence in tlus case, I would ask this Court to find my client guilty of

murder no higher than third degree." N.T. 5/19/2009 at 151-52. As trial counsel made this

statement after petitioner decided to take the stand, it clearly could not have impacted petitioner's

decision to testify.

        Petitioner's claim that trial counsel was ineffective for forcing him to testify was without

arguable merit and failed.

3. Trial counsel was ineffective for failing to litigate a motion to suppress petitioner's
statement to police.

        Petitioner's tIllrd claim is that trial counsel was ineffective for failing to me a motion to

suppress petitioner's statement to honucide detectives. 1925(1:» Statement, 5/10/2014 at '13. In his

amended petition, petitioner failed to provide any explanation as to how/why his written statement

was involuntary and coerced. This Court alerted petitioner to the deficiency in his pleading and

advised that he must advance some legal and/or factual argument to support his claim. 2Q7 Notice,

8/29/2013 at 10, citing Commonwealth v. Gonzalez, 608 A.2d 52 (pa.Super. 1992) (rejecting a claim

that trial counsel was ineffective for failing to litigate a motion to suppress where the petitioner

failed to discuss facts of the case and set forth a legal argument to support the claim that the search

and seizure was improper). Petitioner did not respond to tlus Court's 907 Notice, nor did he

specify, in Ius 1925(b) Statement, the basis upon which he claimed that his statement to detectives

should have been suppressed. Without providing any argument as to the foundation of this issue,

petitioner's claim lacked arguable merit and failed.

4. Trial counsel was ineffective for failing to interview and present Deshawn Harris, Kalesha
and Moesha Doe as witnesses in petitioner's defense at trial.

        Petitioner's fourth claim is that trial counsel was ineffective for failing to call Deshawn

Harris, Kalesha Doe and Moesha Doe to testify on petitioner's behalf at trial. 1925(b) Statement,

5/10/2014 at '\1'\14-5. Petitioner alleged that Deshawn Harris "may have been able to testify that


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petitioner did not have a gun." Memorandum of Law, 4/26/2013, at 6. Additionally, petitioner

claimed that both Kalesha and Moesha Doe lmew that Puel had killed John Maddison, and that Fuel

intended to kill petitioner. Id. at 7. However, as petitioner personally decided not to present any

witnesses, he may not now claim that trial counsel was ineffective for failing to call witnesses to

testify on his behalf; accordingly, the instant claim failed.

        "[A] defendant who makes a knowing, voluntary and intelligent decision concerning trial

strategy will not later be heard to complain that trial counsel was ineffective on the basis of that

decision." Commonwealth v. Paddy, 800 A.2d 294, 315 (Pa. 2002).

        During this Court's colloquy with petitioner concerning his decision to testify, this Court

questioned petitioner as to whether he wanted to present any evidence - any witnesses - in his

defense:

        THE COURT: And is there anything else that you thought would happen during this trial
        that is not going to happen?
        PETITIONER: No, ma'am.
        THE COURT: Were there any witnesses that you provided to Mr. Pagano?
        PETITIONER: No, ma'am.
        THE COURT: Anybody that you wanted to have subpoenaed or investigated to bring them
        in here to testify in your case?
        PETITIONER: No, ma'am.
        THE COURT: You understand, once again, sir, that you will be bound by the answers that
        you're giving me here today?
        PETITIONER: Yes.

N.T. 5/19/2009 at 46-47.

        Petitioner's Clain1 of counsel's ineffectiveness based on a decision to which he knowingly,

intelligently and voluntarily agreed failed for lack of arguable merit.

5. The Commonwealth failed to provide a videotape of the scene at Tim's Donut Shop to
petitioner in violation of his rights under the United States and Pennsylvania Constitutions.

        Petitioner's fifth claim is that the Commonwealth violated petitioner's rights under the

United States and Pennsylvania Constitutions by failing to disclose a videotape of the scene at Tim's

Donut Shop. 1925(b) Statement, 5/10/2014 at ~ 6. On August 7, 2013, PCRA counsel represented

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that the videotape at issue did not contain any relevant information, effectively withdrawing this

claim:

         THE COURT: So the Brady claim, the video tape, what's on it?
         MR. KAUFFMAN: There's nothing on there that I'm aware of that has any bearing on this
         particular matter.

N.T. 8/7/2013 at 5.

         As PCRA counsel conceded that the pU1ported videotape did not contain exculpatory or

impeaching evidence favorable to petitioner, petitioner failed to raise a colorable Brady claim. See

Commonwealth v. Ly, 980 A.2d 61,     75~ 76   (PH. 2009), quoting Commonwealth v. Gibson, 951 A.2d

1110, 1126 (pa. 2008) ("[T]o establish a Brad)' violation, a defendant is required to demonstrate that

exculpatory or impeaching evidence, favorable to the defense, was suppressed by the prosecution, to

the prejudice of the defendant."). Thus, this claim failed.

         For all of the foregoing reasons, this Court's decision to deny and dismiss petitioner's PCM

petition should be affirmed.

                                                                BY THE COURT:




                                                                KI~~ J.
                                                                M. TERESA SA       UNA




                                                   14
