J-S47023-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

GABRIELL PHILLIPS,

                        Appellant                   No. 2612 EDA 2013


              Appeal from the PCRA Order of August 22, 2013
               In the Court of Common Pleas of Bucks County
            Criminal Division at No(s): CP-09-CR-0007782-2008


BEFORE: MUNDY, OLSON AND WECHT, JJ.

MEMORANDUM BY OLSON, J.:                      FILED SEPTEMBER 12, 2014

      Appellant, Gabriell Phillips, appeals from the order entered on August

22, 2013, denying relief on his first petition pursuant to the Post Conviction

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

      The PCRA court summarized the facts and procedural history of this

case as follows:

            On February 24, 2009, after [a bench trial], [Appellant]
        was found guilty of the manufacture, delivery, or possession
        of cocaine with the intent to manufacture or deliver,
        criminal conspiracy, and intentional possession of a
        controlled substance by a person not registered to possess
        controlled substances.     Pursuant to a plea agreement,
        [Appellant] was sentenced on April 21, 2009, to a term of
        imprisonment of not less than three nor more than six years
        in a state correctional facility, and a consecutive four-year
        term of probation. [Appellant] filed a notice of appeal on
        May 15, 2009, and [the trial court] issued an order on May
        27, 2009, directing [Appellant] to file a statement of
        matters complained of on appeal within twenty-one days.
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             [Appellant] filed a docketing statement on June 1, 2009,
         but did not file a statement of matters complained of on
         appeal. On July 22, 2009, [the trial court] issued an opinion
         stating that since [Appellant] had not filed a statement of
         matters complained of on appeal, there were no issues

         should be quashed. On September 4, 2009, [this Court]
         remanded this case for sixty days in order to give
         [Appellant] a chance to file a statement of matters
         complained of on appeal. [Appellant] filed a statement of
         matters complained of on appeal on September 18, 2009.

         2010, and on July 16, 2010, [Appellant] filed a [PCRA]
         petition. Thereafter, an amended PCRA petition was filed by
         counsel on September 15, 2010. On October 21, 2011, an
         order granting a motion for change of counsel was entered
         and Sharif Abaza, Esq. was appointed.

            On November 22, 2011, a video hearing was held but
         was continued. On February 12, 2013, a motion to re-list
         the PCRA hearing was filed by counsel. On March 27, 2013,
         a hearing was scheduled for April 26, 2013. On August 22,
         2013, [the trial court] denied [Appe

PCRA Court Opinion, 12/4/2013, at 2-3. This timely appeal followed.1

       Appellant presents the following issue for our review:

         A. Did the lower court err in finding that this [PCRA]
            petition was not granted?




____________________________________________


1
  On September 11, 2013, Appellant filed a notice of appeal. On September
30, 2013, the PCRA court ordered Appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant
complied on October 15, 2013. The PCRA court issued an opinion pursuant
to Pa.R.A.P. 1925(a) on December 4, 2013.




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       Appellant claims that trial counsel was ineffective for failing to call a

witness in order to challenge an affidavit of probable cause and to support

suppression of narcotics found in a storage locker.           More specifically,

Appellant asserts that the manager




                                                                            nse




                                                 2
                                                     Id.

       Our standard of review is as follows:

         We review an order granting a petition under the PCRA in
         the light most favorable to the prevailing party at the PCRA
         level. This review is limited to the findings of the PCRA court
         and the evidence of record. We will not disturb a PCRA
         court's ruling if it is supported by evidence of record and is
         free of legal error. Further, we afford great deference to
         the factual findings of the PCRA court and will not disturb
         those findings unless they have no support in the record.

Commonwealth v. Stewart, 84 A.3d 701, 706 (Pa. Super. 2013) (internal

citations and quotations omitted).

____________________________________________


2
  To the extent that Appellant raised additional claims before the PCRA court
and failed to raise those issues on appeal, they are not presently before us.
See Commonwealth v. Whitaker, 30 A.3d 1195, 1197 n.7 (Pa. Super.
2011)(Appellant waived appellate review of issues included in his concise
statement of the errors complaint on appeal but not developed in appellate
brief).



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      To plead and prove ineffective assistance of counsel a petitioner must

establish:

        (1) that the underlying issue has arguable merit; (2)
        counsel's actions lacked an objective reasonable basis; and
        (3) actual prejudice resulted from counsel's act or failure to
        act. Where the petitioner fails to plead or meet any
        elements of the above-cited test, his claim must fail.

Id. at 706-707 (citations and quotation omitted).

      To satisfy the prejudice prong of this test when raising a claim of

ineffectiveness for the failure to call a potential witness, our Supreme Court

has instructed that the PCRA petitioner must establish that:

        (1) the witness existed; (2) the witness was available to
        testify for the defense; (3) counsel knew, 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 1109 (Pa. 2012).

      In this case, the PCRA court held a hearing wherein Appellant and trial

counsel testified. Appellant testified as follows:

              I asked [trial counsel] to subpoena a guy named
        Morris who ran, actually, the storage unit in Bensalem. And
        he can attest that the officer       officers misrepresented
        themselves when they sent out the affidavit about the
        [drug-sniffing] dog going to my locker, going to 30 lockers
        and then going to my locker and tested positive for drugs.
        It was never no drugs in there. I kept a vehicle in there.

             And Mr. Morris had evidence, had testimony that would

        went directly to my lockers. And they had four dogs and
        none of the dogs did anything. And but the affidavit says
        that they had one dog and they went to 30 lockers and back

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        to my locker an[d] the dog went crazy.         Mr. Morris had




                                                       Id. at 20.    Appellant

further testified that trial counsel told him that a private investigator could

not locate Mr. Morris. Id. at 14.

      In contrast, trial counsel testified that:

            [Appellant] indicated that he bumped into somebody, I

        did say he bumped into him and spoke to him. And once he
        told me that, I had my private investigator, Bill Bell, go over
        to the storage locker. He did go to the storage locker. He
        did speak to this individual.

            This individual did not tell him, meaning Mr. Bell,
        anything that the guy apparently told [Appellant]. And he
        refused to cooperate with us and then suggested that we
        contact corporate office to get more information, which we



        received from their corporate, I believe, to     there was
        another attorney involved in this case. I think it was Guy
        Sciolla.

                             *         *           *



        want to call a witness who was not going to cooperate with


Id. at 30-31.



the decision, and we will not usurp that determination.         The proposed


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witness refused to testify for the defense. Thus, Appellant failed to satisfy

the prejudice prong of the test for counsel ineffectiveness under the PCRA.

Accordingly, his sole appellate issue fails.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/12/2014




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