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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT
                                                                       OF
                                                                 PENNSYLVANIA


                         v.

    OMAR ALI ROLLIE

                              Appellant                     No. 776 EDA 2017


                  Appeal from the PCRA Order February 13, 2017
                In the Court of Common Pleas of Delaware County
    Criminal Division at No(s): CP-23-CR-0004832-2013, CP-23-CR-0005439-
                                      2013


BEFORE:     BOWES, J., LAZARUS, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.:                              FILED FEBRUARY 07, 2018

        Appellant, Omar Ali Rollie, appeals from the order entered February 13,

2017, denying his petition for collateral relief filed under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        On June 26, 2014, a      jury convicted Appellant of attempted homicide,
possession of    a   controlled substance with intent to deliver, and possession of

drug paraphernalia.' In September 2014, Appellant was sentenced to twenty-

five to fifty-two years of incarceration followed by nine years of probation.

Appellant's      judgment of      sentence     was    affirmed    on   appeal.   See

Commonwealth v. Rollie,           131 A.3d 101 (Pa. Super. 2015) (unpublished




'   18 Pa.C.S. § 901(a); 35 P.S. §§       780-113(a)(30), (32), respectively.
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memorandum). Appellant did not seek review with the Pennsylvania Supreme

Court.

         In June 2016, Appellant pro se filed      a   motion seeking PCRA relief, raising

a    number of claims of ineffective assistance of counsel.                      Counsel was

appointed         but filed   a   Turner/Finley2 letter and sought to withdraw
representation. The court granted counsel's request. Thereafter, the court

sent all parties notice that the petition would be dismissed without                    a   hearing

pursuant to Pa.R.Crim.P. 907. Appellant pro se filed               a   response to that notice.

The court formally dismissed the petition on February 13, 2017.

        Appellant pro se timely appealed.              Both Appellant and the trial court

have complied with Pa.R.A.P. 1925.

         On appeal, Appellant raises the following issues              for our review which we

have reworded and reordered for ease of analysis:              3



         1. Did  trial counsel provide ineffective assistance by failing to
         investigate, call, or cross examine eyewitnesses Naysir Hassan
         and Kevin Davis, thereby violating Appellant's right to
         confrontation and depriving him of crucial testimony?

         2. Didtrial counsel provide ineffective assistance where he failed
        to object to the admission of an AK -47 as a trial exhibit, which
        was used during closing argument and shown to the jury, where
        the Commonwealth withdrew the charge of convicted felon not to
        possess a firearm?



2 See Commonwealth v. Turner,                            544   A.2d        927   (Pa.       1998);
Commonwealth v. Finley, 550 A.2d 213                   (Pa. Super. 1998).

3Appellant separately claimed that the PCRA court erred when it denied his
petition without a hearing. As we will address the lack of a hearing alongside
each of Appellant's other issues, treating it as a separate issue is unnecessary.

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        3. Was Appellant's sentence illegal, based upon the doctrines of
        double jeopardy and merger?
See Appellant's Brief at 4-5.

        We review an order denying a petition under the PCRA to determine

whether the findings of the PCRA court are supported by the evidence of

record and free of legal error.    Commonwealth v. Ragan, 923 A.2d 1169,
1170 (Pa. 2007). We afford the court's findings deference unless there is no

support for them in the certified record. Commonwealth v. Brown, 48 A.3d

1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson, 995

A.2d 1184, 1189 (Pa. Super. 2010)).

        In this case, the PCRA court dismissed Appellant's petition without      a

hearing. See PCRA Court Order, 9/22/15 (citing in support Pa.R.Crim.P. 907).

There is no absolute right to an evidentiary hearing. See Commonwealth

v.   Springer, 961 A.2d 1262, 1264    (Pa. Super. 2008). On appeal, we examine

the issues raised in light of the record "to determine whether the PCRA court

erred in concluding that there were no genuine issues of material fact and

denying relief without an evidentiary hearing." Springer, 961 A.2d at 1264.

        All of Appellant's issues involve the ineffective assistance of counsel. We

presume counsel is effective.      Commonwealth v. Washington, 927 A.2d
586, 594 (Pa. 2007).        To overcome this presumption and establish the

ineffective assistance of counsel,      a    PCRA   petitioner must prove, by    a

preponderance of the evidence: "(1) the underlying legal issue has arguable

merit; (2) that counsel's actions lacked an objective reasonable basis; and (3)


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actual prejudice befell the petitioner from counsel's act or omission."

Commonwealth v. Johnson, 966 A.2d 523, 533                    (Pa. 2009) (citations

omitted). "A petitioner establishes prejudice when he demonstrates that there

is a   reasonable probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different.     Id.   A claim will be denied

if the petitioner fails to meet any one of these requirements. Commonwealth

v.   Springer, 961 A.2d 1262, 1267     (Pa. Super. 2008) (citing   Commonwealth
v.    Natividad, 938 A.2d 310, 322     (Pa. 2007));   Commonwealth v. Jones,
942 A.2d 903, 906 (Pa. Super. 2008).

        First, Appellant claims that trial counsel provided ineffective assistance

by allegedly "stipulating" to the unavailability of various witnesses.4         See

Appellant's Brief at 17. Appellant contends that this stipulation violated his

Sixth Amendment right to confrontation.        Id. Appellant argues that    counsel

was ineffective for failing to call Naysir Hassan, an eyewitness and victim, to

the preliminary hearing or to trial.    Id. at 34-38. Further, Appellant argues
that counsel should have called Kevin Davis, an eyewitness, to trial. Id. at

43.

        To establish a claim that counsel was ineffective for failing to investigate

or call witnesses, an appellant must meet four prongs: (1) the witness existed;

(2) counsel was either aware of or should have been aware of the witness'


4         stipulation appears in the record. At best, the prosecutor states, in
    No such
his opening argument, that "Counsel and I've agreed not to have to call the
person who is not local." See Notes of Testimony (N.T.), 6/25/14, Vol. I, at
63.

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existence; (3) the witness was willing and able to cooperate with the defense;

and (4) the defendant was prejudiced by the absence of the witness'

testimony. See Commonwealth v. Simpson, 66 A.3d 253, 271 (Pa. 2013).

Where    a   defendant cannot establish that   a   witness was available to testify for

the defense, the claim fails. See Washington, 927 A.2d at 600.

        While Appellant can certainly show that the witness existed and that

counsel was aware of the witness' existence, this claim still lacks arguable

merit. See Simpson, 66 A.3d at 271. In the instant matter, Mr. Hassan was

called to testify for the Commonwealth, not for the defense.               There   is no

indication that he was willing and able to cooperate with the defense.          Id. At
trial, the Commonwealth was unable to produce him as Mr. Hassan had moved

to Georgia, and it was prohibitively expensive to fly him to Delaware County

for trial. See N.T., 6/25/14, Vol. I, at 62. Thus, Appellant cannot show that

Mr. Hassan was available and willing to cooperate with the defense.         Simpson,
66 A.3d at 271. Further, Appellant has not articulated the manner in which

Mr. Hassan's     testimony would have compelled        a   different result beyond bald

claims to that effect, and accordingly, he has not shown prejudice. Simpson,

66 A.3d at 271; Johnson, 966 A.2d at 533.

        Similarly, Appellant has not claimed that Mr. Davis was willing and able

to cooperate with the defense, or articulated the manner in which Mr. Davis'

testimony would have been helpful to him. See Appellant's Brief at 43-47;

see also Simpson, 66 A.3d at 271; Johnson, 966 A.2d at 533. Indeed, Mr.

Davis was subpoenaed to appear at trial but failed to do so.                 See N.T.,

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8/25/14, at 153. Thus, the record indicates that Mr. Davis was not ready and
able to cooperate with the defense. Simpson, 66 A.3d at 271.

          Thus, Appellant's claims regarding the failure to call witnesses lack

arguable merit, and the PCRA court did not err in concluding that there were

no genuine issues of material fact and denying              relief without an evidentiary

hearing. See Springer, 961 A.2d at 1264.

          Second, Appellant claims counsel provided ineffective assistance for

failing to object to the admission of an AK -47 assault rifle as an exhibit at trial.

See Appellant's Brief 24.            Appellant appears to claim that because the

Commonwealth withdrew the charge of possession of                 a   weapon by   a   felon,

there was no legitimate purpose for the introduction of the weapon as an

exhibit except to inflame the jury. Id.

          At trial, the Commonwealth withdrew the charge to avoid the possibility

of   a   bifurcated trial or the possibility of   a   jury learning that Appellant was     a

convicted felon.         However, the Commonwealth did not withdraw other

charges, including attempted murder, terroristic threats, and recklessly

endangering another person.

          We note, initially, that

          [q]uestions regarding the admission of evidence are left to the
          sound discretion of the trial court, and we, as an appellate court,
          will not disturb the trial court's rulings regarding the admissibility
          of evidence absent an abuse of that discretion. An abuse of
          discretion is not merely an error of judgment; rather, discretion is
          abused when the law is overridden or misapplied, or the judgment
          exercised is manifestly unreasonable, or the result of partiality,
          prejudice, bias, or ill -will, as shown by the evidence or the record.

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Commonwealth v. Trinidad, 96 A.3d 1031, 1036                 (Pa.       Super. 2014)

(citations and quotations omitted). With regard to the admission of weapons

as exhibits,

        all that is demanded before a weapon may be introduced into
        evidence is a sufficient foundation revealing circumstances
        justifying an inference of the likelihood that the weapon was used
        in the crime charged.

Commonwealth v. Clark, 421 A.2d 374, 376             (Pa. Super. 1980).        Items

introduced as evidence may be used during closing arguments.                    See

Commonwealth v. Stark, 526 A.2d 383, 392            (Pa. Super. 1987) (allowing

recorded confession to be played during closing); Commonwealth v. Wise,

444 A.2d 1287, 1289-90 (Pa. Super. 1982); Commonwealth v. Burton, 330

A.2d 833, 837 (Pa. Super. 1975) (finding new trial unwarranted where during

closing    argument,    prosecutor   handled    a   weapon    introduced       as   a

Commonwealth exhibit).

        In the instant case, eyewitness testimony established that Appellant

utilized an AK -47 in the commission of his crimes, which included attempted

murder.        The weapon was described        but not shown        during opening

statements. See N.T., 6/25/14, Vol. I, at 55-65; see also PCRA Court Opinion

(PCO), 7/17/17, at 7. The weapon was properly admitted into evidence during

trial and appropriately shown to the jury during closing arguments. See N.T.,

6/25/14, Vol. I, at 96; see Clark, 421 A.2d at 376; see Burton, 330 A.2d at
837.      Accordingly, this claim lacks arguable merit, and         a    hearing was

unnecessary. See Springer, 961 A.2d at 1264.


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        Finally, Appellant claims that he is entitled to post conviction relief as

the result of an illegal sentence. See Appellant's Brief at 38. Appellant argues

that attempted homicide and terroristic threats should have merged for
sentencing purposes.       Id. at     39.   Appellant appears to misunderstand the

merger rule. His argument is convoluted, but the thrust of it appears to be

that 1) because Mr. Hassan did not appear at trial, Appellant cannot be
sentenced for crimes involving him; 2) the evidence was insufficient to sustain

three consecutive sentences, or convictions, for attempted murder; 3)

because Appellant did not fire three bullets at the retreating car, he could not

be convicted of three counts of attempted murder.            Id. at 41-42.
        Initially, we note that   a   challenge to the sufficiency of the evidence is

not an enumerated error listed in the PCRA. See 42 Pa.C.S.            §   9543(a)(2)(i)-
(viii). Further, an appellant may not raise allegations of error           in an appeal

from the denial of the PCRA relief as if presenting them on direct appeal. See

Commonwealth v. Price, 876 A.2d 988, 995                   (Pa. Super. 2005), appeal

denied, 897 A.2d 1184 (Pa. 2006), cert. denied, 127 S.Ct. 224 (2006) (holding

petitioner's challenge to sufficiency of evidence     is   not cognizable under PCRA).

Thus, to the extent that Appellant challenges the sufficiency of the evidence

to support his three convictions for attempted murder, we decline further

review.

        A claim   that crimes should have merged for sentencing purposes raises

a    challenge to the legality of the sentence.      Commonwealth v. Allen, 24
A.3d 1058, 1062 (Pa. Super. 2011). Our scope of review is plenary and our

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standard of review is de novo.       Id. Whether two offenses merge will turn    on

Section 9765 of the Sentencing Code, which provides:

        No crimes shall merge   for sentencing purposes unless the crimes
        arise from a single criminal act and all of the statutory elements
        of one offense are included in the statutory elements of the other
        offense. Where crimes merge for sentencing purposes, the court
        may sentence the defendant only on the higher graded offense.
42 Pa.C.S.    §    9765.   This Court has previously clarified the current state of

merger law in Pennsylvania, noting that "there        is no   merger if each offense

requires proof of an element the other does not."               Commonwealth v.
Quintua,    56 A.3d 399, 400-01 (Pa. Super. 2012).

        The Crimes Code defines the related crimes, in relevant part, as follows:

        A person commits an attempt when with attempt to commit a
        specific crime, he does any act which constitutes a substantial step
        toward the commission of that crime.
See 18 Pa.C.S.      §   901.

        A  person is guilty of criminal homicide if he intentionally,
        knowingly, recklessly, or negligently causes the death of another
        human being.
See 18 Pa.C.S.      §   2501.

        A person commits the crime of    terroristic threats if the person
        communicates, either directly or indirectly, a threat to:

              1)  commit any crime of violence with intent to
              terrorize another;

              2) cause evacuation of a building, place of assembly,
              or facility of public transportation; or

              3) otherwise cause serious public inconvenience,
              cause terror or serious public inconvenience with


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              reckless disregard of the risk of causing such terror or
              inconvenience.
See 18 Pa.C.S.    §   2706(a)(1)-(3).
        Here, the elements of the crimes are not subsumed within each other.

A person may make a        terroristic threat without actually taking        a   substantial

step towards the crime threatened.                Likewise,   a   person may attempt to

commit murder without conveying           a   threat to the victim   in the process. Thus,

the crimes do not merge, and Appellant's claim lacks arguable merit.                    See

Quintua, 56 A.3d at 400-01. Further,               as a question of law, an      evidentiary

hearing would not be required on this claim. Springer, 961 A.2d at 1264.

        Accordingly, we discern no error in the PCRA court's decision to dismiss

Appellant's petition without an evidentiary hearing.               Appellant's claims are

without merit, and he     is   entitled to no relief.

        Order affirmed. Jurisdiction relinquished.

Judgment Entered.




J seph D. Seletyn,
Prothonotary



Date: 2/7/18




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