J. S61004/14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                   v.                  :
                                       :
GERALD MAR,                            :          No. 740 WDA 2013
                                       :
                        Appellant      :


                 Appeal from the PCRA Order, April 13, 2013,
             in the Court of Common Pleas of Allegheny County
              Criminal Division at No. CP-02-CR-0011935-2006


BEFORE: FORD ELLIOTT, P.J.E., WECHT AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:           FILED DECEMBER 03, 2014

      Gerald Mar appeals from the order denying his first petition for

post-conviction relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.       Appellant’s counsel has filed an

application to withdraw and an appellate brief pursuant to Anders v.

California, 386 U.S. 738 (1967).     Upon careful consideration, we grant

counsel leave to withdraw and affirm the order denying PCRA relief.

      Appellant was convicted of multiple crimes in connection with a

robbery. On direct appeal, this court affirmed, and summarized the facts of

this case as follows:

            On July 23, 2006, Lloyd H. and Daniel H. were
            working at the Family Dollar store located in the
            East Liberty section of Pittsburgh. At approximately
            9:30 a.m.,     Appellant     and   his   accomplice,
            Jamal Jacobs, entered the store armed with guns


* Retired Senior Judge assigned to the Superior Court.
J. S61004/14


          and wearing close-fitting caps and masks that
          covered the lower portion of their faces but exposed
          their eyes and noses. N.T. Trial, 3/23-24/10, at 55.
          Appellant placed his weapon against Lloyd H.’s head
          while Jacobs pointed his gun at Daniel H., who was
          near the store’s safe. Appellant said, “If you don’t
          open up the safe, I’m going to kill this f r.” Id. at
          31. Daniel H. opened the safe, which had a delayed
          release mechanism so that it took approximately one
          minute to open after the code was entered.
          Daniel H. gave the two cohorts approximately
          $1,000 in cash, which they placed in a bag that they
          already possessed.

                Once Appellant and Jacobs left, Lloyd H.
          followed them to see where they were headed, and
          Daniel H. immediately telephoned the police, who
          arrived within one minute of the robbery.
          Approximately thirty seconds after police arrived,
          Daniel H. saw Appellant and Jacobs “running back
          past the store again up the parking lot.” Id. at 34.
          At that time, they were not wearing masks but had
          the bag with the cash.

                Within five minutes of the criminal episode,
          Daniel H. was asked by police to identify two men,
          Appellant and Jacobs, who had been taken into
          custody. Daniel H. immediately identified them as
          the perpetrators of the crime and was positive that
          they were the two men who had just robbed the
          store. Id. at 35-36. Daniel H. explained that they
          were wearing the clothing worn by his assailants and
          that he had seen the eyes and nose structure of
          Appellant and his accomplice. Id. at 37, 38-39, 45.
          Daniel H. also confirmed that he was looking at
          Appellant directly during the minute that it took the
          safe to open, stating that he kept “looking over [at
          Appellant] because [Appellant was] yelling he is
          going to kill [Lloyd H.].” Id. at 45.

                Christina R. was a customer in the store during
          the robbery and had her young daughter with her.
          She saw Appellant and Jacobs enter the store with
          guns and masks and immediately said to Appellant,


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          “[M]y daughter is in the store, please don’t shoot.”
          Id. at 62. Appellant responded, “We won’t, we
          won’t.” Id. at 63. Christina R. heard Appellant
          threaten to kill Lloyd H. while holding a gun to his
          head and saw Daniel H. open the safe while Jacobs
          was pointing a gun at him. After the robbery, she
          stayed behind and also observed Appellant and
          Jacobs, who were unmasked, running through the
          parking lot of the Family Dollar soon after the crime.
          At trial, she identified Appellant as the man who held
          the gun to Lloyd H.’s head. Id. at 60.

                 Pittsburgh Police Sergeant James Kohnen
          testified as follows. He was in the vicinity when he
          received the report of the crime and a description of
          the perpetrators. As he was proceeding to Family
          Dollar, he saw two individuals matching the
          description of the robbers running toward a baseball
          field. Sergeant Kohnen exited his patrol car, gave
          chase, and continually broadcast his location and
          that of the criminals from his shoulder radio. Jacobs
          still had a gun and was holding the bag of cash. As
          the two men crossed the field, they fled in different
          directions.     Sergeant Kohnen followed Jacobs,
          tackled him, and placed him under arrest.

                About one and one-half blocks from the field,
          Appellant was apprehended by Sergeant Gordon
          McDaniel. Sergeant McDaniel entered the chase of
          the two suspects based upon the radio reports from
          Sergeant Kohnen. As Sergeant McDaniel proceeded
          in the direction that Appellant had been fleeing, a
          guard for a local church next to the baseball field
          exited the church and pointed in the direction of
          Larimer and Auburn Streets. That officer proceeded
          in that direction, where he was met by two other
          Pittsburgh police officers. They began to search the
          area, and Sergeant McDaniel discovered Appellant
          hiding under the crawl space of a porch. Id. at 107.
          Police forcibly removed Appellant from his hiding
          place and returned him to the baseball field, where
          Sergeant Kohnen positively identified Appellant as
          the man who was fleeing the scene of the crime with
          Jacobs. A cap, which was worn by the perpetrator


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           who had placed the gun against Lloyd H.’s head, was
           underneath Appellant’s person when he was
           apprehended in the crawl space. A videotape of the
           robbery was shown to jurors.

Commonwealth of Pennsylvania v. Mar, 30 A.3d 544 (Pa.Super. 2011)

(unpublished memorandum at 1-4).

     Following a jury trial on March 23-24, 2010, appellant was found guilty

of one count each of robbery, serious bodily injury; violation of the uniform

Firearms Act (“VUFA”), carrying a firearm without a license; recklessly

endangering another person; and criminal conspiracy.     On June 21, 2010,

appellant was sentenced to a term of 5 to 10 years’ incarceration for the

robbery conviction, a consecutive term of 2 to 4 years’ incarceration for the

VUFA offense, and a consecutive 2-year probationary term for REAP.

Appellant’s aggregate sentence was 7 to 14 years. Post-sentence motions

were denied, and appellant took a direct appeal.     On May 20, 2011, this

court affirmed the judgment of sentence. Commonwealth v. Mar, 30 A.3d

544 (Pa.Super. 2011) (unpublished memorandum).           On September 28,

2011, our supreme court denied allowance of appeal. Commonwealth v.

Mar, 30 A.3d 487 (Pa. 2011).

     On February 28, 2012, appellant filed a timely pro se PCRA petition,

and counsel was appointed.     On June 4, 2012, counsel filed an amended

petition on appellant’s behalf, and an evidentiary hearing was held on

March 18, 2013. On April 4, 2013, appellant’s petition was denied. A timely




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notice of appeal was filed on May 3, 2013.     Appellant has complied with

Pa.R.A.P. 1925(b), 42 Pa.C.S.A., and the PCRA court has issued an opinion.

     On July 11, 2014, appointed counsel, Christy P. Foreman, filed a

petition to withdraw and accompanying “Anders brief.”1      Appellant raises

two issues for our review:

           1.    WHETHER THE PCRA COURT ERRONEOUSLY
                 DISMISSED APPELLANT’S CLAIM THAT HIS
                 PRIOR TRIAL COUNSEL WAS INEFFECTIVE FOR
                 FAILING     TO      CALL     APPELLANT’S
                 CO-DEFENDANT, JAMAL JACOBS, AND FOR
                 FAILING TO ADMIT JAMAL JACOB’S AFFIDAVIT,
                 WHICH IN THE CIRCUMSTANCES OF THE
                 PARTICULAR CASE, SO UNDERMINDED [SIC]
                 THE TRUTH DETERMINING PROCESS THAT NO
                 RELIABLE ADJUDICATION OF GUILT OR
                 INNOCENCE COULD HAVE TAKEN PLACE[?]

           2.    WHETHER THE PCRA COURT ERRONEOUSLY
                 DISMISSED APPELLANT’S CLAIM THAT THERE

1
   See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981). Counsel is apparently under the
mistaken belief that Anders practice is appropriate for appointed counsel to
withdraw on collateral appeal. Anders practice pertains to direct appeal;
the appropriate practice for withdrawing from a collateral appeal is
Turner-Finley. Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988)(en banc).
Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa.Super. 2011). We
may accept an Anders brief in lieu of a Turner-Finley brief. Widgins, 29
A.3d at 817 n.2. We note that the Widgins court accepted the Anders brief
on the theory that the appellant was afforded greater protection under it,
ostensibly because under prior Anders practice, counsel was supposed to
raise only issues of potential merit and was not to present any argument
against his or her client.     This practice was substantially changed by
Commonwealth v. Santiago, 978 A.2d 349, 360-361 (Pa. 2009). Under
Santiago, counsel must now explain in the Anders brief why the issues are
frivolous. However, even in light of this changed Anders practice, we may
still accept an Anders brief because Santiago simply made Anders practice
more like Turner-Finley practice.


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                   WAS A VIOLATION OF THE CONSTITUTION OF
                   THE COMMONWEALTH OR THE CONSTITUTION
                   OR LAWS OF THE UNITED STATES, WHICH IN
                   THE CIRCUMSTANCES OF THE PARTICULAR
                   CASE,   SO   UNDERMINED     THE   TRUTH
                   DETERMINING PROCESS THAT NO RELIABLE
                   ADJUDICATION OF GILT [SIC] OR INNOCENCE
                   COULD HAVE TAKEN PLACE[?]

Appellant’s brief at 5.

      Prior to addressing the underlying claims, we must resolve counsel’s

petition to withdraw. Our supreme court has stated, “independent review of

the record by competent counsel is required before withdrawal is permitted.”

Commonwealth v. Pitts, 603 Pa. 1, 2 n.1, 981 A.2d 875, 876 n.1 (2009),

citing Turner, supra at 494-495, 544 A.2d at 928.          Independent review

requires PCRA counsel to submit a no-merit letter that:         (1) details the

nature and extent of review; (2) lists the issues the petitioner wished to

have reviewed; and (3) explains why counsel believes the issues are

meritless.   Widgins, 29 A.3d at 818, quoting Pitts, supra at 2 n.1, 981

A.2d at 876 n.1. This court must then conduct its own independent review

of the record and agree that the petition is meritless. Id. Finally,

             PCRA counsel who seeks to withdraw must
             contemporaneously serve a copy on the petitioner of
             counsel’s application to withdraw as counsel, and
             must supply to the petitioner both a copy of the
             “no-merit” letter and a statement advising the
             petitioner that, in the event that the court grants the
             application of counsel to withdraw, he or she has the
             right to proceed pro se or with the assistance of
             privately retained counsel.




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Id., quoting Commonwealth v. Friend, 896 A.2d 607, 614 (Pa.Super.

2006) (citation omitted). In this case, the foregoing requirements were met,

and appellant has not responded to PCRA counsel’s motion to withdraw. We

now turn to an independent review of the issues presented to determine

whether they have merit.

      Initially, we recite our standard of review:

            This Court’s standard of review regarding an order
            denying a petition under the PCRA is whether the
            determination of the PCRA court is supported by the
            evidence of record and is free of legal error.
            Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
            795, 799 n. 2 (2005). The PCRA court’s findings will
            not be disturbed unless there is no support for the
            findings in the certified record. Commonwealth v.
            Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),

appeal denied, 940 A.2d 365 (Pa. 2007).

      Herein, appellant argues that his trial counsel, Randall Ricciuti, Esq.

was ineffective for failing to call his accomplice, Jamal Jacobs,2 (“Jacobs”) as

a witness, or offer Jacobs’ affidavit into evidence.

            [W]e begin with the presumption that counsel was
            effective.    A claimant establishes ineffective
            assistance of counsel when he demonstrates that
            [1] the underlying claim is of arguable merit;
            [2] that counsel’s action or inaction was not
            grounded on any reasonable basis designed to
            effectuate the appellant’s interest; and finally,
            [3] that counsel’s action or inaction was prejudicial

2
  We note that throughout appellant’s brief, Jamal Jacobs is referred to as
appellant’s co-defendant. Because appellant and Jacobs were not tried
together, we will refer to Jacobs as appellant’s accomplice.


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              to the client. For an action (or inaction) by counsel
              to be considered prejudicial to the client, there must
              be a reasonable probability that the outcome of the
              proceedings would have been different. All three
              prongs of this test must be satisfied. If an appellant
              fails to meet even one prong of the test, his
              conviction will not be reversed on the basis of
              ineffective assistance of counsel.

Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa.Super. 2004), appeal

denied, 860 A.2d 123 (Pa. 2004) (citations and internal quotation marks

omitted).

              To establish ineffectiveness for failure to call a
              witness, Appellant must establish that:        (1) the
              witness existed; (2) the witness was available;
              (3) counsel was informed of the existence of the
              witness or counsel should otherwise have known of
              him; (4) the witness was prepared to cooperate and
              testify for Appellant at trial; and (5) the absence of
              the testimony prejudiced Appellant so as to deny him
              a fair trial. A defendant must establish prejudice by
              demonstrating that he was denied a fair trial because
              of the absence of the testimony of the proposed
              witness.

Id. (citations omitted).

      The PCRA provides that “where a petitioner requests an evidentiary

hearing, the petition shall include a signed certification as to each intended

witness stating the witness’s name, address, date of birth and substance of

testimony and shall include any documents material to that witness’s

testimony.”     42 Pa.C.S.A. § 9545(d).      Claims of ineffectiveness of trial

counsel cannot be considered in a vacuum. Commonwealth v. Durst, 559

A.2d 504, 505 (Pa. 1989).



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      Instantly, the amended PCRA petition includes Jacobs as well as

Attorney Ricciuti, Attorney James Sheets, and appellant as intended

witnesses. (Document #53.) Attached to appellant’s PCRA petition was a

notarized statement dated January 4, 2007, signed by himself and Jacobs3

which read:

              On date 07-23-06, Defendant Gerald Mar, was
              arrested on the following charges of robbery, v.u.f.a.
              and r.e.a.d. The defendant did not commit these
              charges and will plea not guilty at his hearing. The
              Defendants co-defendant, Jamal Jacobs, is will to
              testify on, Gerald Mar, behalf. Stating that he does
              not know defendant, Gerald Mar, personally nor did
              he take part in committing these alleged crimes.

Certified record, Document #48.

      Appellant and Attorney Ricciuti were the only witnesses to testify at

the March 18, 2013 PCRA hearing. Because appellant failed to present the

testimony of Jacobs at the PCRA hearing, he was unable to prove that

Jacobs was available to testify at his jury trial regarding the contents of the

above-referenced notarized statement.4




3
 On July 24, 2008, Jacobs pled guilty for his participation in the robbery; he
was sentenced on August 21, 2008.
4
  On cross-examination at the March 18, 2013 hearing, appellant admitted it
was his idea to prepare and type the statement at the county jail law library,
present it to Jacobs, ask him to sign it, and have it notarized. (Notes of
testimony, 3/18/13 at 10-11.)


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     At the PCRA hearing, the following testimony was elicited from

Attorney Ricciuti regarding Jacobs’ testifying at appellant’s trial and the

notarized statement:

           [Counsel for appellant]: Did you have an occasion to
           -- did [appellant] ever bring to your attention having
           the co-defendant, Jamal Jacobs, testify at his trial?

           [Mr. Ricciuti]: Until you brought that up today, I
           only heard about it I think once, and I may have
           asked Jimmy Sheets, Attorney Jimmy Sheets about
           it.

           Question: How would he have been connected?

           Answer: I think he was representing him on another
           related matter.

           The Court: Who, Jamal Jacobs?

           Mr. Ricciuti: Jamal Jacobs.

           [Counsel for appellant]:      You spoke to Mr. Sheets
           about it?

           [Mr. Ricciuti]: I think I did. I don’t know if I made a
           jail visit to Mr. Jacobs. I think I may have talked to
           Mr. Sheets. It was only brought up once.

           Question: By who?

           Answer: [Appellant]. I never heard about it again
           during the trial or even just prior to the trial. For
           that reason I just assumed there was no merit to it.

           Question: Sir, I am handing you what has been
           marked for identification as Defense Exhibit A [the
           notarized statement]. Take a look at this.

           Answer: Okay.

           Question: Do you recognize it?


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            Answer: I don’t recall seeing this, but I know what it
            is.

            Question:    Was this provided       to   you   by   the
            defendant prior to trial?

            Answer: I do not recall, but as I stated before, it
            wasn’t brought up. It wasn’t stressed. It wasn’t
            something that was, hey, what about this guy. If it
            was brought up, it was brought up once. I never
            heard about it again.

Notes of testimony, 3/18/13 at 3-4.5

      Appellant testified he met with Attorney Ricciuti “probably four times”

before his trial, and at some point, he indicated to him that he wished to

have Jacobs testify on his behalf. (Id. at 8.)

      In its Rule 1925(a) opinion, the PCRA court opined:

            [G]iven that the proffered testimony purports to
            exculpate [appellant] from any involvement in the
            crime, there was no evidence presented at the PCRA
            hearing that establishes a specific strategy for failing
            to attempt to present Jacobs’ testimony.              As
            [appellant’s] defense at trial was that he was not
            involved in the robbery, despite evidence to the
            contrary, Jacobs’ testimony would not have been
            inconsistent with [appellant’s] defense and there is
            no discernible reason not to offer the testimony
            unless Jacobs would have refused to testify.

PCRA court opinion, 12/11/13 at 8.




5
  We note that Attorney Ricciuti could not have been expected to introduce
at trial the notarized statement of appellant and Jacobs if he never saw it or
had it in his possession.


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      Despite the above, appellant has failed to prove that but for the error

or omission of counsel, there is a reasonable probability that the outcome of

his trial would have been different.    Two eyewitnesses positively identified

him as the man who held the gun to Lloyd H.’s head and threatened to kill

him unless Daniel H. opened the safe. Also, appellant was viewed without

any mask by those two individuals while he was fleeing the scene of the

crime.   Last, appellant was observed fleeing the crime scene with Jacobs,

who had the cash and a gun, and was apprehended in the vicinity of the

robbery within minutes of its perpetration wearing the clothing worn by the

robber who threated Lloyd H. with the gun. Appellant’s contention, that the

outcome of the trial would have been different based on the testimony of

Jacobs that appellant did not participate in the crime, is not supported by

the record as there was overwhelming evidence that appellant was the

second perpetrator. In light of this fact, appellant cannot show a reasonable

probability that the outcome of his trial could have been different if only trial

counsel had called Jacobs as a witness.       See Commonwealth v. Davis,

554 A.2d 104, 112 (Pa.Super. 1989) (trial counsel not ineffective for failing

to produce alibi witness where, even if witness were presented, no

reasonable likelihood exists verdict would have been more favorable to

defendant).

      Appellant also argues that in the absence of Jacobs’ testimony,

Attorney Ricciuti should have introduced Jacobs’ affidavit during trial under



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Pa.R.E. 804(b)(3) as a statement against interest.         However, Attorney

Ricciuti testified he did not recall ever seeing the affidavit.      (Notes of

testimony, 3/18/13 at 4.)

     In addressing this issue, the PCRA court explained:

           Jacob[s]’ statement would not be admissible under
           Rule 804(b)(3) to the extent that the statement
           purports to exculpate Petitioner. Petitioner fails
           to establish how Jacob[s]’ assertion that Petitioner
           did not participate in the crime constitutes a
           declaration against Jacob[s]’ interest.        Further,
           even assuming that some portion of the statement
           could be interpreted as a declaration against
           Jacob[s]’ interest, such a finding does not lead to the
           conclusion that the entire statement would be
           admissible.    A careful review of the statement
           indicates that the portion of the statement which
           purports to exculpate Petitioner is not admissible
           pursuant to Rule 804(b)(3).

                                   ***

           Examining [] each individual statement made by
           Jacobs in his affidavit, there is no basis to find that
           the portion referring to Petitioner is a statement
           against interest by Jacobs and, therefore, admissible
           under the 804(b)(3) hearsay exception.

                  Assuming, however, that the statement as a
           whole tended to expose Jacobs to criminal liability,
           804(b)(3) further provides that, “a statement is not
           admissible    unless   corroborating   circumstances
           clearly   indicate   the   trustworthiness    of  the
           statement.” Petitioner has offered no evidence of
           corroborating circumstances clearly indicating the
           trustworthiness of the statement. On the contrary,
           the trustworthiness of the statement is called into
           question by the very fact that Petitioner admitted
           that he prepared the statement while both he and
           Jacobs were incarcerated and he presented [it] to
           Jacobs for his signature.     It is also telling that


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            despite the fact that Jacobs clearly had an
            accomplice in the robbery, he fails to disclose who
            the other actor was, if it was not Petitioner.
            Consequently,    there   are    no     corroborating
            circumstances which indicate the trustworthiness of
            the statement.

PCRA court opinion, 12/11/13 at 9-10 (emphasis in original).

      Based on the above, we see no error in the PCRA court’s determination

that appellant’s contention trial counsel was ineffective for failing to present

the alleged affidavit of Jacobs at trial to be without merit.

      In his second issue, appellant contends the PCRA court erroneously

dismissed his claim that there was a violation of the Constitution which so

undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place.          There is no merit to this

argument.    Attorney Ricciuti’s actions in failing to attempt to call Jacobs

have not been shown to have adversely affected the outcome of the trial.

Appellant failed to show that Jacobs would have testified had he been called.

There was no proof of what Jacobs would have testified to other than the

affidavit prepared by appellant. Accordingly, appellant has failed to establish

a constitutional claim for ineffectiveness of counsel.

      Order affirmed. Petition to withdraw granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/3/2014




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