J-S25009-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

MANNY ELLIS,

                         Appellant                  No. 1108 EDA 2016


              Appeal from the PCRA Order Entered March 4, 2016
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0006414-2009


BEFORE: BENDER, P.J.E., RANSOM, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                         FILED JUNE 13, 2017

      Appellant, Manny Ellis, appeals from the post-conviction court’s March

4, 2016 order denying his petition filed under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546.        Appellant raises six claims for our

review, all involving ineffective assistance of counsel. After careful review,

we affirm.

      The PCRA court summarized the factual history of Appellant’s case as

follows:

            On December 16, 2008, [Appellant] and co-defendant
      Ramieq Jackson [(hereinafter “Jackson”)] approached Isaiah
      Walker [(hereinafter “Walker”)] when he was outside of his
      residence located on the 1500 block of Grange Street.
      [Appellant] and Jackson wore dark hoodies and were seated in a
      green Crown Victoria sedan. Jackson got out of the car and said
      to [Appellant], “There he go.” [Appellant] then fired several
      shots at Walker, who was struck in the chest and in the left arm.
J-S25009-17


             Walker’s mother[, Bernadette Walker (hereinafter “Ms.
       Walker”),] was inside the residence when she heard the
       gunshots and a male voice state, “I told you I would get you.”
       She and Walker’s brother[, David Murray (hereinafter
       “Murray”),] hurried outside to help Walker who was lying on the
       street. As they helped him, Walker told [Ms. Walker] and
       [Murray] that he was shot by [Appellant] and Jackson.
       [Appellant] and Jackson targeted Walker because they believed
       that he was cooperating in a robbery case against a mutual
       friend.

             Walker provided a written statement to police on the night
       of the shooting wherein he identified [Appellant] and Jackson as
       the individuals who shot him.[1] At trial, Walker was given the
       opportunity to deny or admit making the prior statements. After
       denying making the statement, the Commonwealth called
       Detective Knoll to testify regarding the content and
       circumstances of the statement including that it was signed and
       adopted by Walker and that he told police that [Appellant] was
       the person who shot him.[2]

             [Ms. Walker] provided a signed and written statement to
       police in which she stated that Walker told her that he was shot
       by [Appellant] and Jackson.[3] At trial, [Ms. Walker] testified
       that she did not remember anything that occurred on the day of
       the shooting. She also testified that she did not remember what
____________________________________________


1
  Specifically, when asked, “who shot you tonight?” Walker replied, “Ramieq
[Jackson] was there, but [Appellant] shot me.” N.T. Trial, 12/3/10, at 171.
2
 Additionally, the Commonwealth confronted Walker with his prior testimony
at the preliminary hearing. See N.T. Trial at 184-196. There, Walker was
asked what happened on the day of the shooting, and he replied, “I was
coming from the store and I got involved in a fight with Ramieq [Jackson]
but as I was going into the house I was shot by [Appellant].” N.T.
Preliminary Hearing, 5/9/09, at 5. Walker also identified Appellant in court
as the person who shot him. Id. at 8.
3
 Specifically, Ms. Walker told police that she “asked [Walker] who shot him,
and he said Ramieq [Jackson]. He also said something about [Appellant].”
N.T. Trial at 63.




                                           -2-
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       she said to police or even signing her statement.            The
       Commonwealth introduced her statement into the record
       wherein she indicated that Walker told her that [Appellant] shot
       him.

             [Murray] also provided a signed and written statement to
       police in which he stated that Walker told him that he was shot
       by [Appellant] and Jackson.[4] When called as a witness for the
       Commonwealth, [Murray] also failed to recall the details of his
       statement to police. … The Commonwealth, as with [Ms.
       Walker], introduced [Murray’s] statement … that identified
       [Appellant] as the shooter into the record.

PCRA Court Opinion (PCO), 5/17/17, at 1-3 (citations to the record and

footnote omitted).

       Following Appellant’s non-jury trial on December 3, 2010, the court

convicted him of attempted murder, 18 Pa.C.S. § 901(a); aggravated

assault, 18 Pa.C.S. § 2702(a); criminal conspiracy, 18 Pa.C.S. § 903(a)(1);

carrying a firearm without a license, 18 Pa.C.S. § 6106(a)(1); carrying a

firearm in public in Philadelphia, 18 Pa.C.S. § 6108; and possessing an

instrument of crime, 18 Pa.C.S. § 907(a).        On April 7, 2011, he was

sentenced to an aggregate term of 14 to 30 years’ imprisonment. He filed a

timely direct appeal to this Court, and after we affirmed, our Supreme Court

denied his subsequent petition for allowance of appeal. Commonwealth v.

Ellis, 46 A.3d 829 (Pa. Super. 2012) (unpublished memorandum), appeal

denied, 53 A.3d 49 (2012).

____________________________________________


4
 Specifically, Murray told police that he “asked [Walker] who shot him, and
he told me Ramieq [Jackson] and [Appellant].” N.T. Trial at 123.




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      Appellant filed a timely PCRA petition on August 26, 2013.             He

thereafter retained private counsel, who filed an amended petition on

October 27, 2014.       On January 19, 2016, the PCRA court issued a

Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition and, after

receiving no response from Appellant, the court did so by order entered

March 4, 2016.    Appellant filed a timely notice of appeal, and also timely

complied with the PCRA court’s order to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal.         Herein, he presents the

following six issues for our review:

      I. Was trial counsel ineffective for failing to object to [the]
      admission of the co-defendant’s statement in violation of the
      Confrontation Clause?

      II. Was trial counsel ineffective for failing to object to the
      admission of the victim’s [statement to] police … where the
      victim was incoherent while giving and signing it and the
      preliminary hearing court excluded it on those grounds?

      III. Was trial counsel ineffective for failing to object to hearsay
      testimony about unspecified witnesses identifying Appellant as a
      suspect?

      IV. Did trial court bias and prosecutorial misconduct violate
      Appellant’s right to a fair trial and was appellate counsel
      ineffective for failing to raise this issue?

      V. Were trial and appellate counsel ineffective for failing to
      challenge the sufficiency of the evidence for all convictions where
      the sole evidence was recanted out-of-court statements which
      were inconsistent with each other and given under circumstances
      diminishing their reliability?

      VI. Was trial counsel ineffective for failing to counsel Appellant
      about his jury-trial right and pressuring him into waiving it?

Appellant’s Brief at 1-2 (unnecessary capitalization omitted).


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      First, “[t]his Court’s standard of review from the grant or denial of

post-conviction relief is limited to examining whether the lower court’s

determination is supported by the evidence of record and whether it is free

of legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997)

(citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)).

Where, as here, a petitioner claims that he received ineffective assistance of

counsel, our Supreme Court has directed that the following standards apply:

      [A] PCRA petitioner will be granted relief only when he proves,
      by a preponderance of the evidence, that his conviction or
      sentence resulted from the “[i]neffective 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). “Counsel is presumed effective, and to
      rebut that presumption, the PCRA petitioner must demonstrate
      that counsel's performance was deficient and that such
      deficiency prejudiced him.” [Commonwealth v.] Colavita, 606
      Pa. [1,] 21, 993 A.2d [874,] 886 [(Pa. 2010)] (citing
      Strickland[ v. Washington, 104 S.Ct. 2053 (1984)]).              In
      Pennsylvania, we have refined the Strickland performance and
      prejudice test into a three-part inquiry. See [Commonwealth
      v.] Pierce, [515 Pa. 153, 527 A.2d 973 (Pa. 1987)]. Thus, to
      prove counsel ineffective, the petitioner must show that: (1) his
      underlying claim is of arguable merit; (2) counsel had no
      reasonable basis for his action or inaction; and (3) the petitioner
      suffered actual prejudice as a result. Commonwealth v. Ali,
      608 Pa. 71, 86, 10 A.3d 282, 291 (2010). “If a petitioner fails to
      prove any of these prongs, his claim fails.” Commonwealth v.
      Simpson, [620] Pa. [60, 73], 66 A.3d 253, 260 (2013) (citation
      omitted).       Generally, counsel's assistance is deemed
      constitutionally effective if he chose a particular course of
      conduct that had some reasonable basis designed to effectuate
      his client's interests.   See Ali, supra.      Where matters of
      strategy and tactics are concerned, “[a] finding that a chosen
      strategy lacked a reasonable basis is not warranted unless it can
      be concluded that an alternative not chosen offered a potential
      for success substantially greater than the course actually

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      pursued.” Colavita, 606 Pa. at 21, 993 A.2d at 887 (quotation
      and quotation marks omitted). To demonstrate prejudice, the
      petitioner must show that “there is a reasonable probability that,
      but for counsel's unprofessional errors, the result of the
      proceedings would have been different.” Commonwealth v.
      King, 618 Pa. 405, 57 A.3d 607, 613 (2012) (quotation,
      quotation marks, and citation omitted).         “‘[A] reasonable
      probability is a probability that is sufficient to undermine
      confidence in the outcome of the proceeding.’” Ali, 608 Pa. at
      86–87, 10 A.3d at 291 (quoting Commonwealth v. Collins,
      598 Pa. 397, 957 A.2d 237, 244 (2008) (citing Strickland, 466
      U.S. at 694, 104 S.Ct. 2052)).

Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).

                                   Issue I

      Appellant first argues that his trial counsel acted ineffectively by not

challenging the admission of a written statement made by his non-testifying

co-defendant,   Jackson,   which   “was    insufficiently   redacted,   replacing

Appellant’s name with ‘blank.’” Appellant’s Brief at 13. Appellant contends

that the admission of this confession violated the United States Supreme

Court’s holdings in Bruton v. U.S., 391 U.S. 123 (1968) (declaring that a

defendant “is deprived of his rights under the Confrontation Clause when his

non[-]testifying co[-]defendant’s confession naming him as a participant in

the crime is introduced at their joint trial, even if the jury is instructed to

consider that confession only against the co[-]defendant”), and Gray v.

Maryland, 523 U.S. 185, 197 (1998) (holding that a confession by a non[-]

testifying co[-]defendant that was redacted using blanks, the word ‘delete,’

or an obvious symbol violates the Confrontation Clause).




                                     -6-
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      After careful review, we disagree with Appellant that he was prejudiced

by counsel’s failure to object to the admission of Jackson’s confession, as

Appellant has not demonstrated that it impacted the trial court’s verdict in

this case. Initially, as the PCRA court stresses, Appellant was not tried by a

jury and, thus, the concerns underlying the Bruton decision are not present

in this case.   See PCO at 6 (concluding that “Bruton only applies to the

introduction of redacted confessions during jury trials, not bench trials”)

(citing Commonwealth v. Brooks, 660 A.2d 609, 614 n.3 (Pa. Super.

1995) (noting that, because the appellant “was tried by a judge, not a jury,

… the problems associated with the jury’s improper use of a redacted

confession which were addressed in Bruton, supra, … are not present in

this case”); see also Commonwealth v. Managan, 281 A.2d 666, 668

(Pa. Super. 1971) (noting “that the fundamental reason on which the

decision in Bruton was predicated was a balancing of risks, i.e., the risk that

a jury could or would not disregard prejudicial out-of-court inculpatory

statements of a co[-]defendant, who did not testify, although instructed by

the court to do so, against the risk of the jury system not accomplishing the

justice it is established to render.   Such a risk is not present in this case

where the fact[-]finder i[s] the judge who, in a jury trial, would be the one

to give the instruction to the jury to disregard such prejudicial evidence.

Certainly it is not too unreasonable to presume that he would himself obey

the mandate he would have given to a jury.”).




                                       -7-
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      Moreover, the PCRA court points out that “[t]he trial judge, as the

factfinder, is presumed to be perfectly instructed as to how to consider

evidence introduced at trial[,] including improperly Brutonized statements.”

PCO at 6 (citing Commonwealth v. Harvey, 526 A.2d 330, 333 (Pa. 1987)

(stating that “where a criminal case is tried before a judge sitting without a

jury, there is a presumption that his knowledge, experience and training will

enable him to disregard inadmissible evidence”).     Contrary to Appellant’s

argument on appeal, nothing in the PCRA court’s decision suggests that it

considered the language of Harvey as a “rule absolute[,]” meaning that the

presumption discussed in Harvey could not be overcome. Appellant’s Brief

at 15. In any event, the record does not support Appellant’s assertion that

the ‘Harvey presumption’ was overcome in this case.             According to

Appellant,

      [t]here is at least one concrete indication that the [trial] court
      did use Jackson’s statement as evidence against Appellant.
      Absent Jackson’s statement, there was no evidence to convict
      Appellant of conspiracy with Jackson to commit first-degree
      murder.

Id. at 18 (emphasis in original).

      Appellant’s argument is unconvincing, as there was ample evidence -

aside from Jackson’s confession - to support the trial court’s conclusion that

Appellant and Jackson conspired to murder Walker.            Namely, in his

statement just after the shooting, Walker told police that just before he was

shot, Jackson and Appellant arrived together in a car, Jackson said, “there

he go,” and Appellant then shot him.     See N.T. Trial at 239-240.    Walker

                                    -8-
J-S25009-17



also told police that he had “been having a beef” with Appellant and Jackson

“[s]ince the summer.” Id. at 240. At the preliminary hearing, Walker again

said that he had a fight with Jackson, and then later was shot by Appellant.

Id. at 186. Walker also testified at the preliminary hearing that Appellant

was “close up to [him]” when Appellant shot him three times, once in his

chest and twice in his arm. Id. at 189, 190, 191. Additionally, on the night

of the shooting, Appellant’s brother, Murray, told police that he asked

Walker who shot him, and Walker “said Ramieq [Jackson] and [Appellant].”

Id. at 224.     Murray also said that “[t]here was a lady in the car stopped

right next to [the victim] who told [Murray] that there were two guys

running up on [the victim] and shooting at him.”5 Id.

       This evidence was sufficient to prove that Appellant intended to kill

Walker, that he and Jackson agreed to commit that crime together, and that

Appellant took an overt act in furtherance of that agreement by shooting

Walker three times at close range, striking Walker in his chest and arm.

See Commonwealth v. Galindes, 786 A.2d 1004, 1010 (Pa. Super. 2001)

(stating the elements of criminal conspiracy) (citation omitted); see also

Commonwealth v. Smith, 985 A.2d 886, 895 (Pa. 2009) (stating that an

intent to kill may be established by evidence that the defendant “use[d] … a

deadly weapon on a vital part of the victim’s body”). Accordingly, as there

____________________________________________


5
 Appellant did not object to the admission of this testimony at trial. Id. at
224.



                                           -9-
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was sufficient evidence, aside from Jackson’s confession, to convict

Appellant of conspiracy to commit murder, and nothing else in the record

demonstrates that the trial court considered Jackson’s confession as

evidence of Appellant’s guilt, Appellant has not demonstrated that he was

prejudiced by trial counsel’s failure to raise a Bruton/Gray objection to the

admission of Jackson’s confession.

                                        Issue II

       Next, Appellant avers that trial counsel was ineffective for “failing to

move to preclude the use of the statement Walker gave to police on the

night of the shooting naming Appellant as the shooter.” Appellant’s Brief at

21.   Appellant maintains that Walker’s statement was not admissible as

substantive evidence under Pa.R.E. 803.1, or merely for impeachment

purposes under Pa.R.E. 613. Because we conclude that the statement was

admissible under Rule 803.1, we only address that aspect of Appellant’s

argument. In this regard, Appellant claims that Walker’s statement was not

sufficiently reliable, and it was not properly adopted by Walker, as he did not

sign his statement until two days after providing it.6 Appellant’s Brief at 24-

25.
____________________________________________


6
   Appellant also repeatedly stresses that the preliminary hearing judge
precluded testimony regarding Walker’s out-of-court statement, after
Jackson’s counsel objected to it on the grounds that Walker did not verify
that “he gave that statement[,]” and because Walker claimed he “didn’t read
it and … he was under the influence of drugs at the time because he was in
the hospital.” N.T. Preliminary Hearing at 14. The preliminary hearing
(Footnote Continued Next Page)


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J-S25009-17



      Pennsylvania Rule of Evidence 803.1 directs that “[t]he following

statements are not excluded by the rule against hearsay if the declarant

testifies and is subject to cross-examination about the prior statement:”

      (1) Prior Inconsistent Statement of Declarant-Witness. A
      prior statement by a declarant-witness that is inconsistent with
      the declarant-witness's testimony and:

          (A) was given under oath subject to the penalty of perjury
          at a trial, hearing, or other proceeding, or in a deposition;

          (B) is a writing signed and adopted by the declarant; or

          (C) is a verbatim contemporaneous electronic recording of
          an oral statement.

Pa.R.E. 803.1.       The comment to this rule states that it is “consistent with

prior Pennsylvania case law[,]” specifically Commonwealth v. Brady, 507

A.2d 66 (Pa. 1986) (holding that a prior inconsistent statement of a non-

party witness may be used as substantive evidence where the declarant is a

witness at trial and available for cross-examination, the jury had the

opportunity to observe the demeanor of the witness and to assess his

credibility,   and     the   statement      was     rendered   under   highly   reliable

circumstances assuring that it was voluntarily given), and Commonwealth

v. Lively, 610 A.2d 7 (Pa. 1992) (holding that a prior inconsistent statement
                       _______________________
(Footnote Continued)

judge ruled that “any testimony concerning the statement shouldn’t be
admissible[,]” without giving a specific reason for that ruling. Id. at 14-15.
On appeal, Appellant cites no legal authority suggesting that the trial court
was bound by the preliminary hearing judge’s determination. Moreover,
based on our discussion, infra, we conclude that Walker’s statement was
admissible under Rule 803.1 and, therefore, the magisterial court erred by
not admitting it.



                                           - 11 -
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by a non-party witness shall be used as substantive evidence only when it

was given under oath at a formal legal proceeding, or the statement was

reduced to writing signed and adopted by the declarant, or the statement

was   recorded   verbatim   contemporaneously    with   the   making   of   the

statement).

      Here, Detective Joseph Knoll testified that he went to the hospital to

speak to Walker at approximately 9:30 p.m. on the night of the shooting,

December 16, 2008. N.T. Trial at 237. The detective testified that when he

arrived, Walker was “alert” and “aware of what[ was] going on.” Id. at 238.

Detective Knoll stated that Walker “was talking to family members” and to

the officers. Id.   Walker did not “seem like he was in pain.” Id. Initially,

Walker “seemed like he didn’t want to talk to [the detective]. But after a

few minutes, [the detective was] able to talk to him and he was able to give

[the detective] some answers to a couple questions.”          Id.   After the

detective wrote down Walker’s answers to the questions asked of him,

Walker “read it over[.]” Id. Detective Knoll testified that he did not have

Walker sign the statement that day because Walker had “IVs connected into

him,” the detective “wasn’t sure which IV was going to what arm[,]” and he

“was just afraid to have [Walker] sign anything at that time.” Id. at 239.

Consequently, Detective Knoll returned to the hospital two days later - on

December 18, 2008 - to have Walker sign his statement. Id. at 241. On

that day, Walker read his statement again, determined that he had no

changes to make, and then he signed the statement. Id. at 241.

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       Based on this testimony, we conclude that Appellant was not

prejudiced by trial counsel’s failure to object to the admission of Walker’s

out-of-court statement. Walker took the stand at trial and was subject to

cross-examination. There is no dispute that his testimony was inconsistent

with his statement to police. That statement was taken just hours after the

shooting, when the events were fresh in Walker’s mind and he had no

apparent motive for fabrication.         Detective Knoll testified that Walker was

alert and coherent when he spoke to police.            Two days after answering

Detective Knoll’s questions, Walker adopted that statement by reading it

over, deciding not to make any changes to it, and then signing it. 7        Thus,

Walker’s statement was admissible as substantive evidence under Rule

803.1(1)(B), and Appellant was not prejudiced by his counsel’s failure to

object to the admission of that statement.

                                       Issue III


____________________________________________


7
  We reject Appellant’s argument that Commonwealth v. Presbury, 665
A.2d 825 (Pa. Super. 1995), holds that “a statement must have been
adopted when it was made, not at a later date.” Appellant’s Brief at 25. The
only reference to this issue in Presbury is the following sentence:
“Instantly, the prior statement was signed and adopted by Jones at the time
the statement was made.” Id. at 832. We disagree with Appellant that this
sentence in Presbury must be read as holding that a statement can never
be adopted “at a later date.” Appellant’s Brief at 25. Certainly, it is more
common, and preferable, that a statement be signed and adopted at the
time it is made. However, here, Walker was presented with his statement
only two days after making it, and he clearly adopted it by reading it over,
deciding not to make any changes to it, and then signing it.



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      In Appellant’s third issue, he avers that his trial counsel was ineffective

for not objecting “to police witnesses’ hearsay testimony that other

witnesses, who were not called or even named at trial, identified Appellant

as being involved in the shooting.” Appellant’s Brief at 28. Briefly, during

the testimony of Detective William Knecht, he was asked questions

pertaining to how police had assembled a photographic array that included

pictures of Jackson and Appellant. See N.T. Trial, 12/3/10, at 92-95. In his

answers, the detective explained that, while he was conducting an interview

of Bernadette Walker at the hospital, other “detectives [were] conducting

interviews with witnesses who were on the scene[,]” from which “[t]hey

were able to generate photos….”      Id. at 94-95.    Those photographs were

then given to Detective Knecht at the hospital and shown to Ms. Walker. Id.

at 92, 95.

      In concluding that Detective Knecht’s testimony was admissible (and,

thus, Appellant’s counsel was not ineffective for failing to object to it), the

PCRA court reasoned that “certain out-of-court statements - offered to

explain the course of police conduct - are admissible because they are

offered, not for the truth of the matters asserted, but rather to show why

the police took certain actions.”     PCO at 8 (citing Commonwealth v.

Chmiel, 889 A.2d 501, 532 (Pa. 2005)).        The court concluded that, here,

“the testimony of the detective[] was not offered for the truth of the matter

asserted, but rather merely to show how the police put together the photo

array….” Id. at 9.

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       The record supports the PCRA court’s determination.           Detective

Knecht’s testimony that detectives compiled a photographic array, which

included Appellant’s and Jackson’s pictures, based on information provided

by witnesses at the scene, was not offered to prove the truth of what was

asserted by those witnesses, i.e., that Appellant and Jackson were involved

in the shooting.     Instead, the detective’s testimony was offered merely to

explain how the police developed the photographic array that was shown to

Ms. Walker during her interview at the hospital.          Therefore, Detective

Knecht’s testimony was not inadmissible hearsay, and Appellant was not

prejudiced by his counsel’s failure to object to that evidence.8

                                        Issue IV

       Next, Appellant avers that his appellate counsel was ineffective for

failing to argue on appeal that the trial court and the prosecutor exhibited
____________________________________________


8
  We also note that we are unconvinced by Appellant’s argument that the at-
issue testimony by Detective Knecht should have been objected to, and
precluded, due to the risk that the trial court would consider it as
substantive evidence of Appellant’s guilt. Appellant stresses that courts
“must exercise caution in permitting” such ‘course of police conduct’
testimony, relying on cases that discuss the risks of admitting such evidence
at jury trials, because “the statements might be taken by the jury as
substantive evidence of guilt without there having been an opportunity to
cross-examine the declarant.”          Appellant’s Brief at 30 (quoting
Commonwealth v. Jones, 658 A.2d 746, 751 (Pa. 1995)) (emphasis
added). Again, Appellant was not tried by a jury, and his bald assertion that
“there is evidence that the trial judge [in this case] did use improper
evidence against Appellant” is insufficient to convince this Court that such
was the case. Id.




                                          - 15 -
J-S25009-17



bias and committed misconduct, respectively. Initially, the Commonwealth

argues, and we agree, that Appellant has waived his appellate counsel

ineffectiveness claims for our review. While Appellant devotes twelve pages

of argument to his trial court bias and prosecutorial misconduct claims, his

entire discussion of how appellate counsel acted ineffectively by not raising

these issues on direct appeal amounts to the following paragraph:

      Instances of trial[]court bias and prosecutorial misconduct
      abounded in Appellant’s trial. Co-defendant Jackson’s counsel
      repeatedly objected and moved for a mistrial.26 On appeal,
      Appellant’s counsel failed to litigate these objections. Instead,
      appellate counsel raised only one frivolous claim of error,
      insufficient evidence of specific intent to kill. The PCRA court’s
      finding that appellate counsel was not ineffective is not
      supported by the record.
         26
            As noted previously, Appellant’s counsel relied heavily
         on Jackson’s counsel to litigate his own case. He asked for
         a running incorporation of all of Jackson’s counsel’s
         objections which the trial court granted. Hence, all of the
         claims of error were preserved for appellate review.

Appellant’s Brief at 43 (citations to the record omitted).

      Notably, Appellant provides no discussion of this Court’s standard of

reviewing trial court bias and/or prosecutorial misconduct claims, or why we

would have granted relief on direct appeal had appellate counsel raised

these issues. Instead, Appellant argues these issues as if he is currently on

direct appeal, which does not meet his burden of pleading and proving

appellate counsel’s ineffectiveness.    See Commonwealth v. Bond, 819

A.2d 33, 40 (Pa. 2002) (finding that a “bald[] assert[ion] that all prior

counsel were ineffective for failing to litigate the issue[,]” which was “tacked


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on to waived claims of trial court error[,] do not discharge [the] appellant’s

burden of proving ineffectiveness”) (citing, inter alia, Commonwealth v.

Bracey,      795   A.2d   935,   940   n.4    (Pa.    2001)   (concluding     that   “an

undeveloped argument, which fails to meaningfully discuss and apply the

standard governing the review of ineffectiveness claims, simply does not

satisfy [an a]ppellant’s burden of establishing that he is entitled to any

relief”)).

       In any event, we would conclude that Appellant’s claims of trial court

bias and prosecutorial misconduct lack arguable merit and, therefore,

appellate counsel was not ineffective for failing to raise them on direct

appeal. First, in regard to the trial court, Appellant contends that the court

exhibited bias “in two ways … : (1) direct statements giving the appearance

of bias or improper influence, and (2) conduct giving the appearance that

the   court   pre-judged    significant     aspects   of   the   evidence,    including

questioning which bordered on badgering of the witnesses.”                   Appellant’s

Brief at 33. To summarize, Appellant takes issue with comments the court

made during the examinations of Walker, Ms. Walker, and Murray, which

indicated that the court did not believe their testimony that they could not

recall the events of the shooting or anything they told police.              See, e.g.,

N.T. Trial, 12/03/10, at 61 (the court’s stating that it did not believe Ms.

Walker’s claim that she could not recall anything she told police about the

shooting); id. at 124-134 (the court’s questioning Murray about whether he

remembered the statement he made to police); id. at 133-34 (the court’s

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stating to Murray that he was “not being badgered[,]” but was instead

“being questioned”); id. at 196 (the court’s asking Walker if he was saying

“the stenographer did not record his answers correctly” at the preliminary

hearing when he identified Appellant); id. at 213 (the court’s asking Walker

if he “wanted [the court] to believe] that he “uttered these words [at the

preliminary hearing] but didn’t know what [he was] saying”). According to

Appellant, these statements indicated the court was biased against him, as it

pre-judged the credibility of these witnesses’ claims that they did not

remember the events of the shooting.

     In rejecting this argument, the PCRA court reasoned as follows:

           Here, the trial court heard evidence as factfinder and was
     required to make credibility determinations of each witness.
     During the testimony of Walker’s mother, the trial court
     expressed its skepticism of her truthfulness after she stated that
     she could not remember anything about the day that her son
     was shot despite being presented with her signed statement.
     The trial court cautioned her - by delineating the possibility of
     being taken into custody - that she risked criminal charges if she
     was not truthful. Similarly, despite his statement…, Walker’s
     brother implied during his trial testimony that police compelled
     him to say [Appellant] was the shooter. While being questioned
     by the Commonwealth about these inconsistencies, the trial
     court stated, “You’re not being badgered.           You’re being
     questioned…[.] You are not being forthright.[”] [N.T. Trial,]
     12/03/10[,] at 134. When Walker provided testimony [that was]
     inconsistent with his prior statements and testimony, the trial
     court, in disbelief of Walker’s testimony, said, “So the
     stenographer did not record your answers correctly; is that what
     you are saying?” Id. at 196.

           When viewed in the context of the entire trial, the trial
     court’s statements and questions to the witnesses were nothing
     more than candid assessments of the credibility of each witness.
     Indeed, there was nothing improper [in] the trial court[’s] …


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        mak[ing] such assessments given its fact-finding role in a bench
        trial. Further, [Appellant] presents no evidence to overcome the
        presumption that a trial court acts without bias or prejudice.
        See Commonwealth v. Tainan, 734 A.2d 886, 889[] (Pa.
        Super. [] 1999) ([stating] a trial judge is presumed to act
        “properly, bound by the oaths of his office and faithful to the
        requirements of an unprejudiced, unbiased judiciary”). As such,
        there is no basis to find that any of the trial court’s statements
        were prejudicial or deprived [Appellant] of a fair and impartial
        trial.

PCO at 14-15.

        Having reviewed the at-issue comments and questions by the trial

court, we would conclude that the record supports the PCRA court’s

rationale. At worst, the trial court’s comments and questions of Walker, Ms.

Walker, and Murray revealed that the court was frustrated with these

witnesses’    “collective amnesia,” as the Commonwealth aptly puts it. See

Commonwealth’s Brief at 43. However, we see nothing in the record from

which we could conclude that the court harbored a bias against these

witnesses or Appellant, or that the court could not conduct an impartial

assessment of the evidence. Moreover, we agree with the Commonwealth

that,

        especially when there is no jury to be influenced, a trial judge
        need not limit his reaction to a raised eyebrow when witnesses
        give combative and facially implausible testimony. Rather, the
        judge has the right and, at times, the duty to “ask questions
        when absurd, ambiguous, or frivolous testimony is given or
        testimony is in need of further elucidation.” Commonwealth v.
        Carson, 913 A.2d 220, 249 (Pa. 2006).

Commonwealth’s Brief at 41-42.




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      Additionally, Appellant’s claim that the court’s conduct exhibited a

‘pre-judgment’ of the witnesses’ credibility is belied by the record, as the

court’s statements occurred after these witnesses testified that they could

not recall the shooting or their statements to police. Appellant       also   takes

issue with the judge’s comment that he has “to use [his] own good common

sense and [his] experience for many, many years as to what happened” in

assessing the credibility of the witnesses and rendering his verdict.          N.T.

Trial at 279-80. Appellant argues that the court’s comment reveals that the

court was improperly “us[ing its] experience from other cases to draw

inferences of guilt against Appellant.”         Appellant’s Brief at 34 (emphasis

added). Appellant is simply misstating the court’s remark, as the court did

not refer to other cases when mentioning its ‘experience.’ We see nothing

improper in the trial court’s comment. See Commonwealth v. Brown, 52

A.3d 1139, 1169 (Pa. 2012) (“The trier of fact may bring to bear his or her

sensory observations, experience, common sense and logic upon the witness

to assess credibility and to determine the truth and accuracy of both the out-

of-court declarations and in-court testimony.”).

      In sum, Appellant’s claim that the trial court exhibited bias and ‘pre-

judged’ the evidence is not supported by the record, and therefore, we

would conclude that his appellate counsel was not ineffective for failing to

raise this claim on direct appeal.

      We    would   reach    the     same   conclusion     regarding    Appellant’s

ineffectiveness   claim   pertaining   to   alleged    prosecutorial   misconduct.

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Appellant specifically points to (1) remarks the prosecutor made to Walker,

Ms. Walker, and Murray at the start of their testimony, which informed them

that there would be consequences if they lied on the stand; (2) questions

posed by the prosecutor to each of these witnesses that, according to

Appellant, suggested that they were being dishonest; and (3) the following

remark by the prosecutor during closing arguments:

      [The Prosecutor]: … [Walker, Ms. Walker, and Murray] told a
      different story in court today two years later -- and I’m not going
      to … ask the [c]ourt to consider why that is because I know the
      [c]ourt is more than aware of what happens when someone two
      years later gets -- has to face their accusers in court in an open
      courtroom in a city where we know what happens.

N.T. Trial at 283-84. Essentially, Appellant complains that the prosecutor’s

remarks to, and about, these witnesses implied to the court that the

prosecutor “knew the witnesses’ in-court testimony was false and that they

had been intimidated.” Appellant’s Brief at 41.

      In rejecting Appellant’s arguments, the PCRA court concluded that

“[e]ven if these comments were improper, they were not made to a jury[,]”

and “[t]he trial court, through its experience and training, was able to

disregard any inadmissible evidence and provide [Appellant] with a fair

trial.” PCO at 16. Appellant challenges the PCRA court’s reasoning by baldly

claiming that there was “one concrete example of the [trial] court’s inability

to disregard inadmissible evidence.”   Appellant’s Brief at 43.   Presumably,

Appellant is referring to his belief that the court improperly considered

Jackson’s confession as evidence of Appellant’s guilt. Appellant also stresses


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that “the court’s behavior,” discussed supra, demonstrates that the court

was prejudiced against him and these witnesses because of the prosecutor’s

remarks.      Because we have considered both of these arguments, and

determined that neither is supported by the record, we would ascertain no

error in the PCRA court’s determination that the prosecutor’s comments,

even if improper, did not unavoidably prejudice the factfinder, i.e., the trial

court.      See Commonwealth v. Rolan, 964 A.2d 398, 410 (Pa. Super.

2008) (“Generally, a prosecutor’s arguments to the jury are not a basis for

granting a new trial unless the unavoidable effect of such comments would

be to prejudice the jury, forming in their minds fixed bias and hostility

towards the accused which would prevent them from properly weighting the

evidence and rendering a true verdict.”).

                                    Issue V

         In Appellant’s fifth issue, he argues that appellate counsel was

ineffective for failing to challenge the sufficiency of the evidence to sustain

all of Appellant’s convictions, rather than only challenging his attempted

murder conviction. Appellant does not specifically discuss what element(s)

of aggravated assault, conspiracy, possessing an instrument of crime, or his

firearm offenses that the Commonwealth failed to prove. Rather, he argues

that his appellate counsel should have asserted that his convictions must all

be overturned because they were premised only on out-of-court statements,

which were all recanted at trial.




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      In rejecting this claim, the PCRA court relied on Commonwealth v.

Brown, 52 A.3d 1139 (Pa. 2012), where our Supreme Court held,

      that criminal convictions which rest only on prior inconsistent
      statements of witnesses who testify at trial do not constitute a
      deprivation of a defendant’s right to due process of law, as long
      as the prior inconsistent statements, taken as a whole, establish
      every element of the offense charged beyond a reasonable
      doubt, and the finder-of-fact could reasonably have relied upon
      them in arriving at its decision.

Id. at 1171. The PCRA court also stressed that here,

      [o]n direct appeal, [Appellant’s] appellate counsel challenged the
      sufficiency of the evidence of only the most serious charge of
      attempted murder. The Superior Court affirmed [Appellant’s]
      attempted murder conviction on direct appeal. The other, less
      serious charges stem from the same facts and evidence that
      support the attempted murder conviction. As such, [Appellant’s]
      claim of error is meritless, i.e., an appeal challenging the
      sufficiency of the evidence for the lesser convictions would have
      failed because the same evidence that supported the attempted
      murder conviction also supports the convictions on the lesser
      [crimes].

PCO at 13.

      We see no error in the PCRA court’s decision.     Our Court previously

ruled that the out-of-court statements in this case were sufficient evidence

that Appellant committed attempted murder.       Even had appellate counsel

challenged the sufficiency of the evidence to support Appellant’s other

convictions on the basis that they rested only on out-of-court statements,

Brown clarifies that such statements can be enough to sustain a criminal

conviction.   Moreover, Appellant’s attempt to distinguish the statements

admitted in this case from those found admissible in Brown is unconvincing.



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As in Brown, the statements were reduced to writing and signed by the

witnesses, and each statement was admitted into evidence at trial under

Pa.R.E.   803.1(1).     Additionally,    the     statements   were   fundamentally

consistent in naming Jackson and Appellant as Walker’s shooters, and

Walker, Ms. Walker, and Murray each testified at Appellant’s trial, thus

providing the trial court with the opportunity to assess the credibility of their

claimed memory loss, and their suggestions of undue police influence in

making their out-of-court statements. Again, Appellant does not make any

argument that the element(s) of his crimes were not proven by the out-of-

court statements. Thus, as in Brown, the out-of-court statements admitted

in this case were sufficient evidence to sustain Appellant’s convictions.

Consequently, he was not prejudiced by appellate counsel’s failure to raise a

sufficiency challenge to each of his convictions on direct appeal.

                                    Issue VI

      In Appellant’s sixth and final issue, he argues that his “[t]rial counsel

provided ineffective assistance in failing to ensure that Appellant’s jury [trial]

waiver was knowing and intelligent - indeed, he coerced it.”            Appellant’s

Brief at 49.   Appellant specifically contends that the “in-court, oral waiver

colloquy was deficient, as it listed none of the essential ingredients[,]” such

as “informing Appellant that jurors would be his peers, that the jury verdict

must be unanimous, and that Appellant would be allowed to participate in

jury selection….” Id. at 52.

      In rejecting this claim, the PCRA court noted that Appellant

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      signed a written waiver of a jury trial form. In addition to the
      signed waiver of jury trial form, [the trial court] conducted an
      oral colloquy where [Appellant] testified under oath that: (1) he
      understood he had an absolute right to a jury trial, (2) no
      promises were made to him to waive his right to a jury, (3) he
      understood that the judge is the factfinder and makes credibility
      determinations, (4) he was not forced or threatened to relinquish
      his right to a jury, and (5) his ability to understand the
      proceedings was not impaired.           Following the colloquy,
      [Appellant] stated that he was satisfied with the representation
      of his attorney.

             Based upon this record, [Appellant’s] waiver of his right to
      a jury trial was knowing, intelligent, and voluntary. His claim
      that he was improperly advised and coerced to waive his right to
      a jury trial is contradicted by the record and thus patently
      frivolous. See [Commonwealth v.] Mallory, 941 A.2d [686],
      696 [(Pa. 2008)] (the use of a written jury trial waiver form
      combined with an oral colloquy demonstrates a valid waiver of
      defendant’s right to a jury trial).

PCO at 10.

      On appeal, Appellant challenges the PCRA court’s reliance on his

written waiver colloquy. Appellant does not dispute that the written colloquy

informed him of all the ‘essential ingredients’ of a valid jury waiver. Rather,

he complains that the “circumstances show its signing was not knowing or

intelligent.” Appellant’s Brief at 52. Appellant elaborates:

      Appellant signed the form on the day of trial, December 3, 2010,
      even though the trial was converted from a three-day jury trial
      to a waiver trial eight months earlier. The eight-month gap
      between waiving the jury trial and signing the waiver form
      supports Appellant’s contention that trial counsel agreed to
      waive a jury without Appellant’s consent and [that counsel]
      foisted the idea upon him on the day of trial. According to
      Appellant, he signed the form without reviewing it or [having]
      trial counsel explain[] it to him because trial counsel appeared
      angry - over a separate matter - and impatient.

Id. at 52-53.


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      Appellant mischaracterizes the record.     First, he incorrectly implies

that he completed the oral and written waiver colloquies eight months before

he signed the written waiver form.      See id.; see also id. at 53 (“[T]he

written form’s validity is rebutted by its being signed months after the actual

waiver….”). The record confirms that Appellant completed both the oral and

written waiver colloquies on the same day, i.e., December 3, 2010, and he

signed the waiver document on that day as well. Moreover, the fact that a

June 8, 2010 notation on the trial court’s docket stated that this case would

be a ‘waiver trial’ does not demonstrate that counsel decided on a non-jury

trial without Appellant’s consent. Indeed, that notation could just as easily

support a conclusion that Appellant and his counsel discussed proceeding

with a non-jury trial for months before Appellant actually waived his right

to a jury in December of 2010.      Notably, Appellant made no claim in his

“Declaration,” attached to his amended PCRA petition, that counsel “foisted

the idea” of a non-jury trial on him on the day trial commenced.

      Second, while Appellant now avers that he signed the written waiver

colloquy form without reviewing it or discussing it with counsel, this

assertion is also belied by the record.   The waiver form explicitly directed

that Appellant should “initial each page at the bottom, but only if you have

read and understood that page.”           Written Jury Trial Waiver Colloquy,

12/3/11, at 1 (unnumbered; emphasis added). Appellant’s initials appear at

the bottom of each page of the colloquy.      Additionally, at the end of the

waiver form, Appellant signed his name directly under the following

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J-S25009-17



statement: “I have answered the questions on the above Defendant

Information Sheet and I have reviewed the entire matter with my

attorney and I understand all of the information given above.” Id. at

4 (unnumbered; emphasis added).          Appellant’s own attestations on the

waiver colloquy form contradict his assertions on appeal. Moreover, as the

Commonwealth points out, Appellant “admitted to the PCRA court that he

had waived his right to a jury in prior cases - an admission that necessarily

implied that the colloquies in this case were not the first time he was

formally advised of the essential elements of a jury trial.” Commonwealth’s

Brief at 55.

      Given the totality of these circumstances - namely, the oral colloquy,

the written waiver form completed by Appellant, and his admissions that he

has previously waived his right to a jury trial - we see no error in the PCRA

court’s conclusion that Appellant’s waiver of his right to a jury trial was

knowing, intelligent, and voluntary. See Mallory, 941 A.2d at 698 (“[T]he

mere absence of a record oral waiver colloquy does not automatically prove

that a right was relinquished unknowingly or involuntarily and that the trial

lawyer was ineffective for causing waiver. …       When a presumptively-valid

waiver is collaterally attacked under the guise of ineffectiveness of counsel,

… the analysis must focus on the totality of relevant circumstances. Those

circumstances include the defendant’s knowledge of and experience with

jury trials, his explicit written waiver (if any), and the content of the off-the-

record discussions counsel had with his client.”) (citations omitted).

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Therefore, Appellant’s trial counsel was not ineffective in advising or allowing

him to waive his right to a jury trial.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/13/2017




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