J-S15008-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    QUENTIN INGRAM                             :
                                               :
                       Appellant               :   No. 502 WDA 2018

                 Appeal from the PCRA Order January 18, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0002741-2012


BEFORE:      GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                                FILED APRIL 26, 2019

       Appellant, Quentin Ingram, appeals from the order of the Court of

Common Pleas of Allegheny County that dismissed his first petition filed under

the Post Conviction Relief Act (PCRA)1 without a hearing. After careful review,

we affirm.

       This case arose from a shooting spree shortly after midnight on

December 18, 2011, at a party hosted by Reginald and Ebony Pearson for

their daughter’s sixteenth birthday. Eight guests at the party were shot by a

male partygoer who repeatedly fired a semi-automatic gun at the crowd and

fled the scene. One of the victims died from his wounds. At Appellant’s jury

trial, Reginald Pearson identified Appellant as the shooter and testified that he


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1   42 Pa.C.S. §§ 9541–9546.


*    Retired Senior Judge assigned to the Superior Court.
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saw Appellant pull out the gun and fire numerous rounds into the crowd of

partygoers. No other witness identified the shooter, but two of the victims

and another guest testified that they knew Appellant and that he was at the

party.     In addition, Mr. Pearson’s testimony as to what the shooter was

wearing, a striped hooded sweatshirt, matched the two victims’ descriptions

of the clothes that Appellant was wearing at the party. See Commonwealth

v. Ingram, No. 1468 WDA 2014, unpublished memorandum at 1-7 (Pa.

Super. filed November 9, 2015); N.T. Trial at 380-82.

         On January 10, 2014, Appellant was convicted by a jury of one count of

third degree murder, seven counts each of aggravated assault and reckless

endangerment, and one count of carrying an unlicensed firearm.2 On April 2,

2014, the trial court sentenced Appellant to 20-40 years imprisonment on the

third-degree murder conviction and 8 to 16 years for each of the aggravated

assault convictions, with no additional penalty for the remaining offenses. The

trial court ordered that Appellant serve all of these sentences consecutively

for an aggregate sentence of 76 to 152 years’ incarceration. Appellant timely

filed post-sentence motions, which were denied by the trial court, and a direct

appeal. On November 9, 2015, this Court affirmed the judgment of sentence.

Appellant filed a petition for allowance of appeal, which the Pennsylvania

Supreme Court denied on March 16, 2016.



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2   18 Pa.C.S. §§ 2502(c), 2702, 2705, and 6106, respectively.

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      On March 3, 2017, Appellant, represented by counsel, filed a timely

PCRA petition, which set forth no grounds for relief and requested a 60-day

extension of time to file an amended PCRA petition on the ground that counsel

did not yet have materials from Appellant’s trial and direct appeal. The PCRA

court granted the requested extension of time to file an amended PCRA

petition.   Appellant’s PCRA counsel did not file an amended PCRA petition

within the extension period and, instead, requested two additional extensions

of time on the ground that a private investigator had been retained to locate

and interview witnesses and that the investigator needed additional time to

locate witnesses. The PCRA court granted Appellant two further extensions of

time, permitting Appellant to file an amended PCRA petition no later than

August 11, 2017.

      On August 10, 2017, PCRA counsel filed an amended PCRA petition

asserting two claims: (1) an ineffectiveness assistance of counsel claim based

on trial counsel’s failure to litigate a motion to suppress Mr. Pearson’s

identification of Appellant; and (2) an after-discovered evidence claim that

after Appellant’s conviction, Mr. Pearson allegedly said to an unidentified

witness not yet located that “the only reason he identified [Appellant] was

because the police threatened to charge him for hosting the party.” Amended

PCRA Petition ¶¶22-27, 29-31. The Commonwealth filed a motion for a more

definite statement seeking an order that Appellant supplement the amended

PCRA petition with respect to the after-discovered evidence claim or withdraw


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that claim. PCRA counsel, in response, sought a 60-day extension of time,

stating that Appellant’s private investigator “is currently attempting to locate

witnesses who will testify that Mr. Pearson admitted only making an

identification of Defendant because he was threatened with arrest and

prosecution for holding an underage drug and alcohol party and for tampering

with the scene,” that “[t]o date said investigator has been unsuccessful in

locating witnesses,” and that the after-discovered evidence claim would be

withdrawn, if such witnesses could not be located within 60 days. 8/29/17

Motion for Extension of Time ¶¶3-5.

      On September 7, 2017, the PCRA court ordered that Appellant file a

supplement to the amended PCRA petition with respect to the after-discovered

evidence claim within ten days. Appellant responded that no witness to Mr.

Pearson’s alleged admission had been located and requested a further

extension of time until November 20, 2017 to supplement the after-discovered

evidence claim. On September 22, 2017, the PCRA court denied this request

for extension and dismissed Appellant’s after-discovered evidence claim.

      On December 19, 2017, the PCRA Court issued a notice pursuant to

Pa.R.Crim.P. 907(1) of its intent to dismiss Appellant's amended PCRA petition

without a hearing on the ground there was no basis for the remaining claim

of ineffective assistance of trial counsel. On January 3, 2018, PCRA counsel

filed a response to the Rule 907(1) notice asserting that on December 15,

2017, Appellant’s mother provided him with a letter from Tyrone Leonard,


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another inmate at the same prison as Appellant, and that Mr. Leonard was the

witness referred to in Appellant’s after-discovered evidence claim. Response

to Notice of Intention to Dismiss ¶¶2-4.     PCRA counsel attached to this

response a copy of an undated handwritten letter from Mr. Leonard stating:

     On December 18, 2011, I received a call from Reginald “Reggie”
     Pearson. … Reggie said to me that he heard the shooter was
     somebody named “Q” from McKeesport & asked if I knew him,
     since im [sic] from McKeesport. When I told him yeah he said he
     didn’t get to see what “Q” looked like because he was upstairs
     while the shooting was going on in the basement. Reggie then
     asked if I could show him a picture of “Q” and tell him his real
     name. I told him “Q’s” real name was Quentin Ingram & showed
     Reggie a picture of Quentin on Facebook & a music video called
     “Let Her” by 4 Pound that Quentin was in.

Id., Attachment.

     On January 18, 2018, the PCRA court dismissed Appellant’s amended

PCRA petition.     On January 23, 2018, PCRA counsel filed a “Certified

Statement of Tyrone Leonard” in which he summarized the testimony that Mr.

Leonard would provide as consisting of the following:

     1. Tyrone Leonard is currently incarcerated at SCI Forest at
     Inmate # LL6178.
     2. Mr. Leonard knew the eyewitness, Reginald Pearson, in this
     matter. Mr. Pearson purchased narcotics from Mr. Leonard on
     multiple occasions.
     3. Mr. Leonard knew Mr. Pearson for some months prior to the
     shooting at Mr. Pearson’s residence.
     4. Mr. Pearson told me the following day that he could not identify
     the shooter.
     5. Mr. Pearson told Mr. Leonard that law enforcement was “on his
     ass” to make an identification.

Certified Statement of Tyrone Leonard ¶¶1-5. On February 6, 2018, PCRA

counsel filed a motion to withdraw as counsel, and the PCRA court, by order

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filed on February 15, 2018, granted that motion and appointed present

counsel to represent Appellant. Because counsel did not receive notice of his

appointment until after the expiration of the appeal deadline, the PCRA court

granted Appellant restoration of his appeal rights and leave to file an appeal

nunc pro tunc from the dismissal of his PCRA petition. This timely appeal

followed.

      Appellant raises the following two issues for our review:

      I. Was PCRA counsel ineffective for failing to properly and timely
      plead and present a claim that the conviction resulted from the
      unavailability at the time of trial of exculpatory evidence that
      subsequently became available and would have changed the
      outcome of the trial if it had been introduced?

      II. Alternatively, did the court abuse its discretion in not granting
      counsel additional time to locate Leonard, who was incarcerated,
      and to file a supplemental petition to set forth the factual basis for
      his “after-discovered evidence” claim, and for not ordering a
      hearing on the claim?

Appellant’s Br. at 4. Appellant does not contend that the PCRA court erred in

dismissing his claim that trial counsel was ineffective for failure to litigate a

motion to suppress Mr. Pearson’s identification of Appellant. We review the

denial of a PCRA petition to determine whether the record supports the PCRA

court’s ruling and whether its decision is free of legal error. Commonwealth

v. Williams, 196 A.3d 1021, 1026-27 (Pa. 2018); Commonwealth v. G.Y.,

63 A.3d 259, 265 (Pa. Super. 2013).

      Appellant’s first issue is barred by waiver.       A claim of ineffective

assistance of PCRA counsel cannot be raised for the first time on appeal and


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is waived unless it was raised in the PCRA court before a notice of appeal was

filed from the PCRA court’s decision.   Commonwealth v. Pitts, 981 A.2d

875, 880 n.4 (Pa. 2009); Commonwealth v. Henkel, 90 A.3d 16, 20, 25-30

(Pa. Super. 2014) (en banc). Here, Appellant never asserted any claim in the

PCRA court that PCRA counsel was ineffective or expressed any dissatisfaction

with PCRA counsel in the period of more than three months between the

dismissal of his after-acquired evidence claim and the dismissal of the

amended PCRA petition, even after the PCRA court’s Pa.R.Crim.P. 907(1)

notice of intent to dismiss the amended PCRA petition without a hearing.

     Moreover, Appellant’s argument that PCRA counsel was ineffective

would fail on the merits, as does his argument that the PCRA court abused its

discretion in not holding a hearing on his after-discovered evidence claim.

Both arguments turn on the same issue, whether the Tyrone Leonard

statements belatedly submitted by PCRA counsel were sufficient to support a

claim for a new trial based on after-discovered evidence.

     A claim of ineffective assistance of counsel requires proof that the

underlying claim that counsel allegedly failed to adequately assert has

arguable merit. Commonwealth v. Johnson, 179 A.3d 1105, 1114-15 (Pa.

Super. 2018); G.Y., 63 A.3d at 265; Commonwealth v. Loner, 836 A.2d




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125, 132 (Pa. Super. 2003) (en banc).3           “Counsel cannot be deemed

ineffective for failing to pursue a meritless claim.” G.Y., 63 A.3d at 265. A

convicted defendant does not have an absolute right to an evidentiary hearing

on his PCRA petition. Commonwealth v. Hill, __ A.3d __, __, 2019 PA Super

12, *8 (filed Jan. 11, 2019); Commonwealth v. Springer, 961 A.2d 1262,

1264 (Pa. Super. 2008). Dismissal of a PCRA petition without a hearing is

proper where the PCRA petitioner’s factual assertions are insufficient to

support a claim for relief. Pa.R.Crim.P. 907(1); Commonwealth v. Holt, 175

A.3d 1014, 1018 (Pa. Super. 2017); see also Commonwealth v. Eichinger,

108 A.3d 821, 849 (Pa. 2014).

       To prevail on an after-discovered evidence claim the convicted

defendant must prove that (1) the exculpatory evidence has been discovered

after trial and could not have been obtained at or prior to trial through

reasonable diligence; (2) this new evidence is not merely corroborative or

cumulative of evidence that was admitted at trial; (3) the new evidence is not

being used solely to impeach credibility; and (4) the new evidence would likely

result in a different verdict. Commonwealth v. Small, 189 A.3d 961, 972


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3 To be entitled to relief under the PCRA on a claim of ineffective assistance of
counsel, the convicted defendant must prove: (1) that the underlying legal
claim is of arguable merit; (2) that counsel’s action or inaction had no
reasonable basis designed to effectuate his client’s interests; and (3) that he
suffered prejudice as a result of counsel’s action or inaction. Commonwealth
v. Mason, 130 A.3d 601, 618 (Pa. 2015); Johnson, 179 A.3d at 1114. The
defendant must satisfy all three prongs of this test to obtain relief under the
PCRA. Mason, 130 A.3d at 618; Johnson, 179 A.3d at 1114.

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(Pa. 2018); Johnson, 179 A.3d at 1123; Commonwealth v. Griffin, 137

A.3d 605, 608 (Pa. Super. 2016); Commonwealth v. Trinidad, 96 A.3d

1031, 1037 (Pa. Super. 2014). All four of these requirements must be proved;

if the defendant fails to establish any one of these, the after-discovered

evidence claim fails. Small, 189 A.3d at 972; Commonwealth v. Padillas,

997 A.2d 356, 363 (Pa. Super. 2010). We conclude that Appellant failed to

satisfy two of these requirements.4

       Evidence that is relevant only to impeach the credibility of a witness who

testified at trial does not satisfy these requirements and is not sufficient to

support the granting of a new trial or PCRA relief based on after-discovered

evidence. Johnson, 179 A.3d at 1123; Griffin, 137 A.3d at 610; Trinidad,

96 A.3d at 1037.         The Tyrone Leonard statements are relevant only as

evidence that a witness, Mr. Pearson, made a prior inconsistent statement to

a third party concerning his ability to identify Appellant as the shooter. Mr.

Leonard did not purport to have any personal knowledge of exculpatory facts

- he did not claim to have been present at the party where the shooting spree

occurred nor did he have any personal knowledge concerning Appellant’s


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4 We note that in Small, our Supreme Court recognized that the four-part test
for after-discovered evidence claims and its requirement that the after-
discovered evidence not be solely for impeachment have been criticized. 189
A.3d at 976 n.12. The Supreme Court, however, did not overrule its prior
precedents in Small and has continued to apply the four-part test. Williams,
196 A.3d at 1031 n.9; Small, 189 A.3d at 972. Unless and until the Supreme
Court overrules its test for after-discovered evidence claims, we are bound by
the Supreme Court’s and this Court’s precedents on this issue.

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involvement or non-involvement in the crime or Mr. Pearson’s ability to

identify Appellant. Mr. Leonard’s statements are therefore relevant solely as

impeachment of Mr. Pearson’s credibility as a witness and are not sufficient to

support an after-discovered evidence claim as a matter of law. Johnson, 179

A.3d at 1123; Griffin, 137 A.3d at 610; Trinidad, 96 A.3d at 1037.

      Indeed, this Court has rejected the very same type of after-discovered

evidence claim on the grounds that the proffered witness statement was

insufficient because it was relevant only to impeach credibility. In Trinidad,

the defendant, who had been identified at trial only by the victim, sought a

new trial based on a newly discovered statement of a third party concerning

a conversation with the victim in which the victim had given a different

description of the person who shot him and had said that “the district

attorney’s office was pressuring him to identify [the defendant] as his

assailant.” 96 A.3d at 1035, 1037. This Court held that this after-discovered

evidence was insufficient to warrant a new trial on the ground that the third

party’s statement was only a “newly discovered basis for impeaching [the

victim’s] identification testimony.” Id. at 1037. This case is indistinguishable

from Trinidad.

      In addition, Appellant has not alleged facts sufficient to establish that

this after-discovered evidence could not have been obtained at or prior to trial

through reasonable diligence. The conversation to which Mr. Leonard says

that he would testify occurred on December 18, 2011, over two years before


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Appellant’s trial. It was therefore Appellant’s burden to explain why he could

not have identified Mr. Leonard and obtained his testimony at trial. Padillas,

997 A.2d at 363; Commonwealth v. Jones, 402 A.2d 1065, 1066 (Pa.

Super. 1979). While PCRA counsel stated that Appellant’s mother notified him

of Mr. Leonard’s evidence in December 2017, there is nothing in the record to

show why Mr. Leonard did not come forward before Appellant’s trial or when

Appellant first knew of Mr. Leonard’s identity. Appellant’s trial counsel was

aware before Appellant’s trial of claims like those set forth in Mr. Leonard’s

letter, as she specifically cross-examined Mr. Pearson at trial on whether he

had looked at Appellant’s picture on Facebook or the internet before making

his identification and whether he based his identification on street talk that

“Q” was the shooter. N.T. Trial at 162-63. There are no allegations in the

record as to what investigations trial counsel made to locate witnesses to

support these arguments or that trial counsel was unaware of such evidence.

      Because Appellant’s after-discovered evidence claim was insufficient as

a matter of law, the alleged failure of PCRA counsel to timely pursue this claim

cannot constitute ineffective assistance of counsel and Appellant was not

entitled to a hearing on this claim. Accordingly, we affirm the PCRA court’s

order dismissing Appellant’s PCRA petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/26/2019




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