J-S63035-19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                 Appellee               :
                                        :
         v.                             :
                                        :
ANDRE FOGG,                             :
                                        :
                 Appellant              :     No. 1335 EDA 2018

                   Appeal from the PCRA Order April 24, 2018
              in the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0002601-2014

BEFORE: GANTMAN, P.J.E., MURRAY, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                  FILED JANUARY 08, 2020

     Andre Fogg (Appellant) appeals from the April 24, 2018 order

dismissing his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we affirm.

     The PCRA court provided the following procedural history.

            On November 24, 2013, [Appellant] was arrested and
     charged with robbery, theft, receiving stolen property[,]
     terroristic threats and simple assault. [Appellant] was bound
     over for court on all charges following a preliminary hearing on
     March 6, 2014. [Appellant] was convicted after a bench trial of
     [the aforementioned crimes]. [Appellant] was sentenced to five
     to ten years’ imprisonment for the robbery[ and a consecutive
     term of] incarceration of one to two years for the terroristic
     threats. Post-sentencing motions were denied and a timely
     appeal filed with the Superior Court, which [Appellant]
     discontinued on August 6, 2015 [in favor of pursuing a PCRA
     petition].

            [Appellant] filed a PCRA petition on February 5, 2016.
     Counsel was appointed and an amended petition subsequently
     filed. The Commonwealth filed a motion to dismiss on December


* Retired Senior Judge assigned to the Superior Court.
J-S63035-19


      15, 2017.     [Appellant] filed an amended petition and an
      evidentiary hearing was held on April 23, 2018.

PCRA Court Opinion, 4/24/2019, at 1-2.

      Relevant to this appeal, Appellant argued in his PCRA petition that trial

counsel, Jules Szanto, was ineffective for failing to secure the appearance of

alibi witness Brian Anderson at trial. Amended PCRA Petition, 6/9/2017, at 3

(unnumbered).     According to Appellant, this was a result of Attorney

Szanto’s conflict of interest because he was an employee of the Defender

Association of Philadelphia (DAP), and another DAP employee had previously

represented Anderson. Id. at 3-4 (unnumbered).

      At the evidentiary hearing, the PCRA court heard testimony from

Attorney Szanto, appellate counsel Karl Morgan, and Appellant.        Attorney

Szanto testified that he subpoenaed Anderson for Appellant’s trial.      When

Anderson failed to appear, Attorney Szanto requested a continuance to

secure his presence because Attorney Szanto believed Anderson would have

been a helpful witness.   Anderson failed to appear at the next trial listing

even though he had been subpoenaed a second time.            Attorney Szanto

testified that he believed Anderson did not appear because he did not want

to be arrested on an outstanding bench warrant for an unrelated 2012

driving under the influence (DUI) case.     Attorney Szanto testified that he

“pleaded” with Anderson to take care of the bench warrant and testify on

Appellant’s behalf, but Anderson refused and stopped answering Attorney

Szanto’s phone calls.   N.T., 4/23/2018, at 8-10, 21-23.      Attorney Szanto

                                     -2-
J-S63035-19

testified that he explained this situation to Appellant, who responded, “Fuck

it. Let’s roll.”   Id. at 11.   Attorney Szanto understood this to mean that

Appellant wanted to proceed to trial without Anderson because Appellant

found the complainant’s story “far[-]fetched[.]” Id. at 11-12.

      Attorney Szanto also testified that he became aware that another

attorney from DAP had represented Anderson in connection with the 2012

DUI case. Despite this prior representation by a colleague, Attorney Szanto

testified that he was concerned about Appellant’s case and not Anderson’s

bench warrant. He further testified that he notified Appellant of a potential

conflict of interest, but did not recall Appellant’s response. Id. at 11-12, 22.

Contrarily, Appellant testified that Attorney Szanto did not notify him of the

potential conflict or Anderson’s refusal to appear. Id. at 40, 42-43.

      The PCRA court dismissed Appellant’s PCRA petition on April 24, 2018.

In concluding counsel did not render ineffective assistance, the PCRA court

found Attorney Szanto’s testimony that he subpoenaed Anderson twice,

Anderson refused to appear, and Appellant decided to go to trial without

Anderson, credible.     PCRA Court Opinion, 4/24/2019, at 5.       Further, the

PCRA court found that Appellant had failed to prove a conflict of interest that

adversely affected Attorney Szanto’s performance. Id. at 7.




                                      -3-
J-S63035-19

      This timely-filed appeal followed.1     Appellant’s sole argument on

appeal is that the PCRA court erred in dismissing Appellant’s PCRA claim that

counsel was ineffective for failing to call Anderson due to a conflict of

interest.2 Appellant’s Brief at 10. We begin with our standard of review.

             This Court analyzes PCRA appeals in the light most
      favorable to the prevailing party at the PCRA level. Our review
      is limited to the findings of the PCRA court and the evidence of
      record and we do not disturb a PCRA court’s ruling if it is
      supported by evidence of record and is free of legal error.
      Similarly, we grant great deference to the factual findings of the
      PCRA court and will not disturb those findings unless they have
      no support in the record. However, we afford no such deference
      to its legal conclusions. Where the petitioner raises questions of
      law, our standard of review is de novo and our scope of review is
      plenary. Finally, we may affirm a PCRA court’s decision on any
      grounds if the record supports it.

Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016) (quoting

Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015)).




1 Appellant filed the instant notice of appeal pro se and failed to file timely
the court-ordered Pa.R.A.P. 1925(b) statement. Because there was no
indication in the record that the PCRA court had permitted PCRA counsel to
withdraw, this Court ordered the PCRA court to determine Appellant’s
representation status. As a result of that inquiry, counsel was appointed.
Both Appellant and the PCRA court have now complied with Pa.R.A.P. 1925.
The Commonwealth has not filed a brief with this Court.

2  Although Appellant raised four issues in his statement of questions,
Appellant addressed his issues as a single claim in the argument section of
his brief, in violation of Pa.R.A.P. 2119(a). Compare Appellant’s Brief at 4
(statement of the questions involved listing four claims as to how the PCRA
court erred) with Appellant’s Brief at 9-10 (argument section restating four
claims but only presenting a single argument). Despite the violation, this
Court will address Appellant’s claim as it does not substantially impede our
review.

                                     -4-
J-S63035-19


      As originally established by the United States Supreme Court
      in Strickland v. Washington, 466 U.S. 668, [] (1984), and
      adopted by Pennsylvania appellate courts, counsel is presumed
      to have provided effective representation unless a PCRA
      petitioner pleads and proves all of the following: (1) the
      underlying legal claim is of arguable merit; (2) counsel’s action
      or inaction lacked any objectively reasonable basis designed to
      effectuate his client’s interest; and (3) prejudice, to the effect
      that there was a reasonable probability of a different outcome at
      trial if not for counsel’s error.

Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa. Super. 2014) (citations

omitted). “A failure to satisfy any prong of the ineffectiveness test requires

rejection of the claim of ineffectiveness.” Commonwealth v. Daniels, 963

A.2d 409, 419 (Pa. 2009).

      When raising a claim of ineffectiveness for the failure to call a
      potential witness, a petitioner satisfies the performance and
      prejudice requirements of the [ineffective assistance of counsel]
      test by establishing that: (1) the witness existed; (2)
      the witness was available to testify for the defense; (3) counsel
      knew of, or should have known of, the existence of the witness;
      (4) the witness was willing to testify for the defense; and (5) the
      absence of the testimony of the witness was so prejudicial as to
      have denied the defendant a fair trial.

Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012) (citations

omitted).

      Regarding   Appellant’s   conflict-of-interest   argument,   we   further

observe the following. Our Supreme Court has held that an appellant cannot

succeed on a conflict-of-interest claim absent a showing of actual prejudice.

Commonwealth v. Sepulveda, 55 A.3d 1108, 1147 (Pa. 2012). Prejudice

is presumed “when the appellant shows that trial counsel was burdened by

an actual—rather than mere potential—conflict of interest. To show an

                                     -5-
J-S63035-19

actual conflict of interest, the appellant must demonstrate that: (1) counsel

actively represented conflicting interests; and (2) those conflicting interests

adversely affected his lawyer’s performance.”          Id. (citation and internal

quotation marks omitted).

      In this respect, i.e., in focusing on the “active” nature of the
      conflict, the Court’s concern centers primarily on the potential
      for an attorney to alter his trial strategy due to extrinsic
      considerations stemming from other loyalties, thereby distorting
      counsel’s strategic or tactical decisions in a manner that would
      not occur if counsel’s sole loyalty were to the defendant. In this
      vein, courts sometimes assess adverse effect by questioning
      whether the record shows that counsel “pulled his
      punches,” i.e., failed to represent the defendant as vigorously as
      he might have done had there been no conflict.

Commonwealth v. King, 57 A.3d 607, 619 (Pa. 2012) (citations omitted).

      Upon review, we find that the PCRA court’s findings are supported by

the record and are free of legal error.         Accordingly, we conclude that

Appellant has not established that Anderson was willing to testify, as is

required to prove ineffective assistance of counsel for failure to call a

witness.     Moreover, Appellant has failed to establish an actual conflict of

interest   that   adversely   affected   Attorney    Szanto’s   representation   of

Appellant.      Although a colleague at DAP had previously represented

Anderson, the PCRA court believed that Attorney Szanto was solely

concerned with the interests of Appellant.          The PCRA court credited the

testimony of Attorney Szanto that he pleaded with Anderson to testify on

Appellant’s behalf despite the outstanding bench warrant on an unrelated

case, subpoenaing him twice in an effort to compel him to do so. We will

                                         -6-
J-S63035-19

not disturb the credibility determinations of the PCRA court. Thus, the PCRA

court did not err in dismissing Appellant’s PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/8/20




                                     -7-
