J-S06016-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TALIB ANDERSON

                            Appellant                   No. 60 EDA 2014


                Appeal from the PCRA Order December 12, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0211481-2001


BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                        FILED FEBRUARY 19, 2015

        Talib Anderson appeals from the order of the Court of Common Pleas

of Philadelphia County, dismissing without a hearing his petition brought

pursuant to the Post Conviction Relief Act.1 We affirm based on the opinion

of the Honorable Gwendolyn Bright.

        On direct appeal, this Court set forth the relevant facts of this case as

follows:

        [On October 17, 1998,] the victim robbed a group of men
        playing craps on the street, including Jarod Strickland.
        Strickland was mad, and told one witness “somebody was going
        to pay” and he would “be back.” Early the next morning,
        [Anderson] and another male, riding in a car, stopped Beth Ann
        Parsons and [Anderson] asked her if she knew where the victim
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
J-S06016-15


      was. She told them his usual whereabouts. Parsons then saw
      the victim and told him that someone was looking for him.
      Approximately 1 to 2 hours later, she saw the victim again. At
      that time, she saw [Anderson] and another man pull up in a car,
      exit the car, walk past her and start shooting the victim. She
      saw the victim fall to the ground.

      David Harrington, who knew the victim, [Anderson], and
      Strickland, was awakened that morning by gunshots. After
      hearing the shots, he exited his house and saw Strickland
      standing over the victim, holding a gun. Harrington also saw
      [Anderson] standing next to a nearby car calling to Strickland,
      “Come on. Come on.” He subsequently saw both [Anderson]
      and Strickland get in the car, and the car drive away.

      The victim died; he had been shot six times; the bullets were
      fired from two different guns.

Commonwealth       v.   Anderson,      No.    1223    EDA   2003,   unpublished

memorandum at 2-3 (Pa. Super. filed June 4, 2004) (citations omitted).

      On January 24, 2003, a jury convicted Anderson of third degree

murder and criminal conspiracy, and on April 2, 2003, the court sentenced

him to 16 to 32 years’ incarceration. This Court affirmed the judgment of

sentence, and on December 28, 2006, the Supreme Court of Pennsylvania

denied Anderson’s petition for allowance of appeal.         Commonwealth v.

Anderson, 916 A.2d 630 (Pa. 2006).

      Anderson filed a timely pro se PCRA petition on September 5, 2007.

The court appointed counsel, who subsequently withdrew, and on November

9,   2012,   new   counsel   filed   the   instant   amended   petition.   The

Commonwealth filed a motion to dismiss on March 15, 2013.             By notice

dated October 24, 2013, the court informed Anderson that it intended to




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dismiss his PCRA petition without a hearing.     See Pa.R.Crim.P. 907.      The

court dismissed the petition on December 12, 2013.

      This timely appeal followed, in which Anderson raises the following

issue for our review:
      Did the trial court err in denying [Anderson] an evidentiary
      hearing when [he] alleged and demonstrated on the record that
      trial defense counsel was ineffective when counsel failed to file a
      post sentence motion asserting that the verdict was against the
      weight of the evidence?

Brief of Appellant, at 2.

      In reviewing an appeal from the denial of PCRA relief, “our standard of

review is whether the findings of the court are supported by the record and

free of legal error.”       Commonwealth v. Martin, 5 A.3d 177, 182 (Pa.

2010) (citations omitted).

      To be eligible for relief under the PCRA, Anderson must prove by a

preponderance of the evidence that his conviction resulted from “ineffective

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 to be effective and the burden of demonstrating

ineffectiveness rests on appellant.”    Commonwealth v. Ousley, 21 A.3d

1238, 1244 (Pa. Super. 2011). To prevail on an ineffectiveness claim, the

defendant must show that the underlying claim had arguable merit, counsel

had no reasonable basis for his or her action, and counsel’s action resulted



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in prejudice to the defendant. Commonwealth v. Prince, 719 A.2d 1086,

1089 (Pa. Super. 1998).

     After a review of the parties’ briefs, the relevant case law, and record

on appeal, we affirm the trial court’s order dismissing Anderson’s PCRA

petition based upon Judge Bright’s Pa.R.A.P. 1925(a) opinion, in which she

explains that Anderson failed to establish a right to relief. We instruct the

parties to attach a copy of Judge Bright’s decision in the event of further

proceedings in the matter.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/2015




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                                IN THE COURT OF COMMON PLEAS
                                     PHILADELPHIA COUNTY
                                    CRIMINAL TRIAL DIVISION

COMMONWEALTH OF PENNSYLVANIA                                 CP-51-CR-0311481-200F         ILED
                                                                                        JUN 202014
                     v.                                                            Criminal Appeals Unit
                                                                                 First Judicial District of PA
                                                         SUPERIOR COURT OF PENNSYLVANIA
            TALID ANDERSON                                    60EDA2014

                                           OPINION

BRIGHT,J.

       On February 7, 200 I Appellant was arrested and charged with Murder, Criminal Conspiracy,

and related offenses, and on January 24, 2003, following a jury trial before this Court, the Honorable

John 1. Posenna, Jr. presiding, he was found guilty of Murder of the llrird Degree and Criminal

Conspiracy.    On April 2, 2003 Appellant was sentenced to a period of incarceration of not less than

sixteen (16) years 1101' more than thirty-two (32) years for Murder of the Third Degree and Ofl1ot less

than five (5) nor more than ten (10) years for Criminal Conspiracy. On April II, 2003 Appellant filed

a timely Notice of Appeal to the Superior Court of Pennsylvania and on August 4, 2004 the Judgment

of Sentence was affirmed. 1223 EDA 2003.        On August 18, 2006 Appellant filed a Petition for

Allowance of Appeal in the Supreme Court of Pennsylvania and 011 December 28, 2006 the Petition for

Allowance of Appeal was denied. 388 EAL 2006.

       On September 5, 2007 Appellant filed the instant Petition pursuant to the Post Conviction

Relief Act l (hereinafter referred to as PCRA) pro se, and PCRA counsel was appointed.      011

Sepatember 13, 2010 Appellant filed an Amended PCRA Petition, pro se. On December 5, 2011

peRA counsel was permitted to withdraw and new peRA counsel was appointed. On November 9,

2012 PCRA counsel filed an Amended PCRA I'etition and on December 12,2012 Appellant filed a

142 Pu.C.S.A.§9541, et seq.
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 Motion to Supplement PCRA Petition pro se. On March 15, 2013 the Commonwealth filed a Motion

to Dismiss, following Notice pursuant to Pa.R.Crim.P. 907, the PCRA Petition was dismissed. This

timely appeal followed on December 19,2013.

        Pursuant to Pa.R.AP. 1925(b) Appellant was instructed to file a Statement of Matters

Complained Of On Appeal. Appellant responded claiming that the Court erred when it dismissed the

Appellant's peRA Petition without holding an evidentiary hearing; that trial counsel rendered

ineffective assistance in failing to file and litigate a post sentence motion asserting the weight of the

evidence; that the trial court erred in not reiostating Appellant's right to file post sentence motions

nunc pro tunc; and that the Court erred in not reinstating Appellants right to file an appeal from the

judgment of sentence nunc pro tunc?

                                                  FACTS

        The facts are summarized in the trial courts' 1925(a) Opinion on direct appeal and in the

documents filed of record in this proceeding.

        On October 17, 1998 Decedent, Damon Blazer, robbed a group of men playing craps at the

comer of Warnock and Indiana Streets, Philadelphia, PA Jarod Strickland, Appellant's co-

conspirator was one of the men playing craps and he vowed retribution. N.T. 1/22/2003 @ 108-130.

The next morniog, Appellant and Strickland began canvassing the area around the 3000 block of North

Warnock Street near Germantown Avenue, lookiog for the decedent. They stopped Beth Ann Parsons

who lived in the area and inquired about Decedent's whereabouts. Parsons told them that Decedent

usually sold drugs on Warnock Street and then she proceeded home. Parsons returned approximately

two hours later at which point she observed Appellant and Strickland exit their car carrying guns and

observed them repeatedly shoot at Decedent. N.T. 1/21/2003 @ 83-88, 91,93, 120.


2 Appellant's1925(b) Statement also includes a statement that Appellant reserves the right to modify,
amend, andlor supplement the 1925(b) Statement. No request for an extension of time within which
to so modiry, amend or supplement has been filed.

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        David Harrington was inside his home on Warnock S"treet at the time of the shooting and upon

hearing the gWlshots exited his house whereupon he observed Strickland standing over Decedent

holding a gun. Harrington heard Appellant admonishing Strickland to 'corne on, come on.' The two

men then entered their vehicle and fled. Id. @ 125-145.

       Philadelphia Police Sergeant Jonathan Josey responded to the scene and observed Decedent

bleeding from multiple gunshot wounds. Decedent was transported to Temple Hospital with seven

gunshot wounds to the head, chest, and side, and later died as a result of his injuries. Police recovered

seven fired cartridge casings from the scene and determined that they had been fired from two different

weapons. Parsons and Harrington later identified Appellant as one of the shooters.

                                             DISCUSSION

       Appellant complains that the Court committed error in denying his PCRA Petition asserting

multiple incidents of ineffective assistance of counsel and in denying his request for an evidentiary

hearing. These claims are without merit.

       42 Pa.C.S.A. § 9543 provides, in pertinent part, as follows:

       "§ 9543. Eligibility for relief

       (a) General rule.--To be eligible for relief under this subchapter, the petitioner must plead and
       prove by a preponderance of the evidence all of the following:

               (1) That the petitioner has been convicted of a crime wlder the laws of tbis
               Commonwealth and is at the time relief is granted:

                      (i) currently serving a sentence ofimprisonment, probation or parole for the
                      crinle;

                      (ii) awaiting execution of a sentence of death for the crime; or

                      (iii) serving a sentence which must expire before the person may commence
                      serving the disputed sentence.

               (2) That the conviction or sentence resulted from one or more of the following;

                       (i) A violation of the Constitution of this Conm10nwealtb 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 guilt
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                       or irmocence could have taken place.

                       (ii) Ineffective assistance of counsel which, in the circumstances of the
                       particular case, so undennined the truth-determining process that no reliable
                       adjudication of guilt or innocence could have taken place.



                       (vii) The imposition of a sentence greater than the lawful maximwn.



               (3) That the allegation of error has not been previously litigated or waived.

               (4) That the failure to litigate the issue prior to or during trial, during unitary review or
               on direct appeal could not have been the result of any rational, strategic or tactical
               decision by counsel. ... "

       The standard of review when presented with a challenge to the ruling by the PCRA Court is

whether the PCRA Court's ruling is supported by the record and is free of legal error. Commonweallh

v. Fitzgerald, 2009 PA Super. 154,979 A.2d 908, 910 (PA Super 2009). In Fitzgerald, supra., the

Superior Court ofPennsylvania elucidated:

       "As a general proposition, an appellate court reviews the PCRA court's findings to see if they
       are suppOlted by the record and Ii'ee from legal error. The cOUlt's scope of review is limited to
       the findings of the PCRA court '" viewed in the light most favorable to the prevailing party.

      To prevail on a claim that cOlIDsel was constitutionally ineffective, the [Appellant] must
      overcome tbe preswnption of competence by showing that: (I) his underlying claim is of
      arguable merit; (2) the particular course of conduct pursued by counsel did not have some
      reasonable basis designed to effectuate his interests; and (3) but for counsel's ineffectiveness,
      there is a reasonable probability that the outcome of the challenged proceedings would bave
      been different A failure to satisfy any prong of this test ... will require rejection of the claim.
      In accord with these well-established criteria for review, an appellant must set forth and
      individually discuss substantively each prong of the Pierce tes!. If an appellant fails to prove
      by a preponderance of the evidence any of the Pierce prongs, the Court need not address the
      remaining prongs of the test.

      To establish the fIrst prong, an appellant must demonstrate that his claim has arguable merit. In
      evaluating the second prong, whether counsel had a reasonable basis for his action, we do not
      question whether there were other more logical courses of action which counsel could bave
      pursued: rather, we must examine whether counsel's decisions had any reasonable basis.
      Finally, to prove the third prong, prejudice, the appellant must show that "but for the act or
      omission in question, the outcome ofthe proceedings would have been differen!."
      Commonwealth v. Fitzgerald, supra, 979 A.2d 908 @ 910-911,citing Commonwealth v. Pierce,
      515 Pa. 153,527 A.2d 973 (1987); Commonwealth v. Hammond, 2008 PA Super 2008, 953

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        A.2d 544,556 (pa. Super. 2008). (Internal citations and quotations omitted.)

When it is clear that the defendant has fuiled to meet the prejudice prong, thc court may dispose of the

claim on that basis alone without any further determination." Commonwealth v. Loner. 2003 PA Super

393,836 A,2d 125, 132-133 (Pa. Super. 2003). (Citations and quotations omitted.) See a/so,

Commonwealth v. Rios, 591 Pa. 583, 920 A.2d 790 (pa. 2007).

        Counsel cannot be deemed ineffective for failing to pursue a meritless claim. If it is clear that

an allegation of ineffectiveness of counsel lacks arguable, an evidentiary hearing is not watTanted.

Commonwealth Y. Steward, 2001 PA Super. 126,775 A,2d 819 (pa. Super. 2001).

        In the case sub judice, Appellant asserts that trial counsel was ineffective in failing to file and

litigate a post sentence motion asserting the verdict was against the weight of the evidence. 42

Pa.C.S.A. § 9543(a)(2)(ii) provides: "A claim for ineffectiveness may be raised in a peRA petition if

the ineffectiveness "so nndermined the truth· determining process that no reliable adjudication of gUilt

or innocence could have taken place." See, Commonwealth v. Grier. 410 Pa.Super. 284, 599 A.2d 993

(Pa.Super.1991). In Commonwealth v. Ortiz, 2001 PA Super 315,786 A.2d 1004 (Pa. Super. 2001)

the Superior Court of Pennsylvania stated the standard used to evaluate a challenge to the weight of the

evidence.

       "A true weight of the evidence challenge concedes that sufficient evidence exists to sustain the
       verdict but questions which evidence is to be believed. An appellate court may review the trial
       court's decision to determine whether there was an abuse of discretion, but it may not substitute
       its judgment for that of the lower court. ... Our Court may not reverse a verdict unless it is so
       contrary to the evidence as to shock ones sense of justice. Finally, the trier of fact while
       passing upon the credibility of witnesses and the weight of the evidence produced, is free to
       believe all, part or none of the evidence. Our review, therefore, is confined to whether the
       trial court abused its discretion." Commonwealth Y. Ortiz, supra, 786 A.2d@ 1013.

Here, the evidence of the Commonwealth is more than sufficient to prove Appellant guilty of Murder

of the Third Degree and Criminal Conspiracy. The jury's verdict is not contrary to, nor is it against

the weight of, the evidence, and the verdict shocks no ones sense of justice.

       Moreover, Appellant fails to plead and demonstrate the third prong of the Pierce test, i.e., that

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he was prejudiced as a result of counsels failing to file and litigate a post sentence motion asserting that

the verdict was against the weight of the evidence. To prove prejudice Appellant must show that "but

for the act or omission in question, the outcome of the proceedings would have been different."

Commonwealth v. Fitzgerald, supra. He has failed to so do. Error was not connnitted.

       Finaily, Appellant complains that the Court erred in not reinstating his right to file post

sentence motions nunc pro tllnc and erred in reinstating his right to file an appeal from the judgment of

sentence nunc pro tunc. This claim is without merit.

       As hereinbefore discussed, 42 Pa.C.S.A. § 9543 provides, in pertinent part, as follows:

       "§ 9543. Eligibility for relief

       (a) General !Ule.--To be eligible for relief under this subchapter, the petitioner must plead and
       prove by a preponderance of the evidence aU of the following:

              (I) That the petitioner has been convicted of a crime under the laws of this
              Connnonwealth and is at the time relief is granted:

                      (i) currently serving a sentence of imprisonment, probation 01' parole for the
                      crime;

                      (ii) awaiting execution of a sentence of death for the crime; or

                      (iii) serving a sentence which must expire before the person may connnence
                      serving the disputed sentence.

              (2) That the conviction or sentence resulted from one or more of the following:

                      (i) A violation of the Constitution of this 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 guilt
                      or innocence could have taken place.

                      (ii) Ineffective assistance of counsel which, in the circtunstances of the
                      particular case, so undermined the truth-detennining process that no reliable
                      adjudication of guilt or innocence could have taken place.



                      (vii) The imposition of a sentence greater than the lawful maximum.

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       III this regard, Appellant sets forth complaints that are not cognizable under 42 Pa. C. SA §
9543 and he is therefore not entitled to relief on these grounds. Error was not conunitted.

                                            CONCLUSION

       For the foregoing reasons, error was not committed and the Order dismissing the PCRA

Petition should be affirmed.

                                             BY THE COURT:



                                                                              BRIGHT,].
