J. S03028/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                    v.                    :
                                          :
AMINA JOHNSON,                            :          No. 1138 EDA 2015
                                          :
                         Appellant        :


                  Appeal from the PCRA Order, March 23, 2015,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0806702-2005


BEFORE: FORD ELLIOTT, P.J.E., OTT AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED MARCH 15, 2016

        Amina Johnson appeals from the order of March 23, 2015, dismissing

her first petition for post-conviction collateral relief.1   After careful review,

we affirm.

        The PCRA court has summarized the history of this case as follows:

                    On     May   17,    2005,   at   approximately
              10:00 P.M.,       Philadelphia     Police      Officer
              Joseph Paraschak responded to a radio call of a
              person shot at 19 West Duval Street in the City and
              County of Philadelphia.     When Officer Paraschak
              arrived on location he observed a large group of
              people on the front lawn and porch of 19 West Duval
              Street. He was met by Michele Long (Michele), a
              resident of the property and an off duty Philadelphia
              Police Officer. Michele was very distressed and was
              requesting assistance for her brother who was inside
              the house. Officer Paraschak observed evidence that
              a shooting had occurred at the location.        When

1
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
J. S03028/16


          Officer Paraschak went inside 19 West Duval Street,
          he observed an African American male, later
          identified as Kenneth Baptiste, Jr. (Kenneth), on the
          floor, unresponsive, bleeding from the head. He also
          observed a female, later identified as Ebony Long
          (Ebony), who had been shot in the arm.
          Officer Paraschak called for an ambulance. After
          securing the scene, he observed approximately
          21 shell casings in the street, a fragment on the
          pathway leading to the house, and a brown revolver
          holster on a chair on the porch.

                 Officer Ryan Teaford, who also responded to
          the radio call, arrived within two minutes of
          Officer Paraschak. Officer Teaford was directed to
          the house by Ebony who requested assistance for
          her brother. Officer Teaford observed that Ebony
          was bleeding from her arm.         When he entered
          19 West Duval Street, he observed Kenneth on the
          floor bleeding and unresponsive. Officer Teaford
          accompanied Kenneth and his attending medics as
          he was evacuated to Einstein Hospital by ambulance.
          Kenneth never regained consciousness and was
          pronounced dead at 2:20 P.M. on May 18, 2005.
          Ebony was transported to the same hospital in a
          separate ambulance.     Officer Teaford interviewed
          Ebony at the hospital and she told Officer Teaford
          that she fought with Appellant earlier near Woodlawn
          and McMahon Streets.       Ebony described a male
          wearing a red hat and blue jeans, and Appellant’s
          sisters as persons who she observed on Duval Street
          during the shooting.

                  Officer Stephen Arbiz also responded to the
          initial radio call. On scene, he was approached by
          Michele who was Ebony’s sister.         Michele was
          pleading for help for her brother.         She told
          Officer Arbiz       that   Appellant’s     boyfriend,
          Gregory Price (Gregory), was present during the
          shooting. Officer Arbiz ascertained the name and
          address of Gregory’s mother as well as Appellant’s
          address and that the suspects were traveling in a
          black Yukon.



                                  -2-
J. S03028/16


                At approximately 10:30 P.M. on May 17, 2005,
          Officer Warren Smith responded to a radio call to go
          to Crosson Street to meet a complainant in reference
          to an assault and was met there by Appellant.
          Appellant told Officer Smith that she had been
          assaulted on Duval Street approximately forty-five
          minutes to an hour earlier by a group of males and
          females. One of the females she recognized was
          Ebony who she related was a woman who formerly
          had a relationship with her baby’s father.
          Officer Smith noted a few lumps on her forehead
          after Appellant told him that a male punched her
          several times. Appellant indicated that she had gone
          to Duval Street with the intention of fighting Ebony.
          When she arrived, Ebony’s sister, Michele, lifted her
          shirt revealing a black handgun tucked into her
          pants. Michele said no one was to enter the fight
          besides the two women or else she would shoot.
          Appellant did not mention the shooting at 19 West
          Duval Street when speaking with Officer Smith.
          Officer Smith asked her what the name of her baby’s
          father was and where he lived, but Appellant feigned
          ignorance. Officer Smith wrote an incident report
          characterizing the information as a domestic issue
          and advised Appellant to seek a protection order.

                 The ensuing homicide investigation into
          Kenneth’s death revealed that there had been an
          ongoing feud between Appellant and Ebony
          surrounding their relationship with Gregory. Ebony
          testified that she had begun what she believed to be
          an exclusive relationship with Gregory about three
          years prior to the incident. She first came in contact
          with Appellant in February 2003.        Appellant and
          three or four of her girlfriends confronted Ebony
          regarding Gregory. Appellant informed Ebony that
          Gregory was her boyfriend and that Ebony should
          stay away from him or else there would be a fight.
          During this incident, Appellant was very angry and
          aggressive. Ebony confronted Gregory about the
          incident that night, but Gregory told Ebony that
          Appellant was lying. Gregory said that he would
          speak with Appellant and would instruct her to leave
          Ebony alone. Following this incident, Appellant and


                                  -3-
J. S03028/16


          her friends would call Ebony’s cell phone and make
          snide remarks or hang up. Ebony told Gregory about
          the calls and he said he would speak with Appellant
          again and reiterated that he was not in a relationship
          with Appellant.    Later, Gregory told Ebony that
          Appellant was pregnant with his child. Ebony broke
          up with Gregory thereafter.

                In late 2003 or early 2004, Gregory, Appellant
          and another woman came into Ebony’s workplace at
          the King of Prussia Mall.     Ebony observed that
          Appellant was pregnant. Appellant and the other
          woman were laughing and pointing at Ebony.
          Appellant remarked to Ebony that she had Gregory
          now; she was pregnant with his child. Gregory did
          not say anything.

                Ebony saw Appellant again, while Appellant
          was pregnant, at a neighborhood restaurant where
          Ebony had stopped to get food before going to work.
          Appellant and three or four female friends followed
          Ebony out of the restaurant and accused Ebony of
          talking about Appellant. Appellant watched as one of
          her female friends shoved Ebony and another tripped
          Ebony although Ebony did not fall. Ebony walked
          away and called her parent to pick her up.

                Ebony continued to have contact with Gregory
          after realizing that Appellant was pregnant although
          Gregory told her that he chose to be with Appellant
          and his child. During the first week of May 2005,
          Ebony and Gregory had a chance encounter at the
          gas station located at Germantown and Washington
          Lane.    Gregory was driving a black Yukon that
          belonged to his cousin, Raphael Hill (Raphael).
          Gregory and Ebony spoke for about five minutes
          before parting company.        Appellant later called
          Ebony warning her to stay away from Gregory.

                On May 17, 2005, Ebony dropped her nephew
          off at 5th and Lindley Streets, and was taking her
          mother to a seafood store that was located three to
          four blocks from Appellant’s house when she
          observed Appellant leaning against a car on Crosson


                                  -4-
J. S03028/16


          Street.     Ebony’s car contained her mother
          Rene Baptiste (Rene), her brother, Kenneth, her
          cousin Remmia, and her two year old niece.
          Appellant, who was with an unidentified male and
          female, upon observing Ebony’s car drive by,
          became angry and yelled down the street at Ebony,
          asking if she had come to fight her. Ebony stopped
          her car near Crosson and Woodlawn Streets, exited
          the vehicle, walked back toward Appellant, and the
          two began to fight. The unidentified male ran back
          toward the Appellant’s home and the unidentified
          female entered the fight. The female hit Ebony,
          pulled her hair, and kicked her in the back while
          Ebony was on top of Appellant. Appellant was trying
          to push Ebony off. The fight stopped when Ebony’s
          mother and brother came and broke up the fight.
          Rene pulled Ebony off of Appellant, and Kenneth
          pulled the unidentified female off of Ebony and then
          took Ebony to the car. Appellant and the female told
          Kenneth that he would die for laying hands on them.
          Appellant also screamed Ebony’s name. Gregory
          was not present at the fight.

                 The fight took place at approximately
          8:30 P.M. and it took about ten minutes for Ebony
          and everyone in the car to get to 19 West Duval
          Street.    Shortly after she arrived home, Ebony
          received a phone call from Gregory, berating her
          about the fight and threatening her should she
          return. Ebony replied that it had been a fair fight
          and hung up. Gregory called back to yell at her and
          finally threatened that the next time he saw her,
          “It’s a wrap.”

                When the car arrived home, Rene told her
          daughter, Michele, about the fight. Michele had been
          asleep on the third floor, but was awakened when
          she heard Rene arguing with Ebony. Michele came
          downstairs and Rene told her that Ebony had been in
          a fight. Michele, Kenneth, and Rene were outside on
          the porch at that point. Ebony was standing on the
          porch telling Michele what happened, when two
          vehicles came speeding down Duval Street, a black
          Yukon, driven by Gregory, and a silver Grand Am.


                                 -5-
J. S03028/16


          Ebony recognized the Yukon as the one Gregory
          drove on previous occasions. When the vehicles
          stopped in front of 23-25 West Duval, Ebony saw
          four males and about six females. The occupants
          exited the vehicles and began walking up the street
          towards 19 West Duval while screaming. Ebony also
          recognized Appellant, Appellant’s two sisters and the
          girl that was at the fight earlier. Ebony went inside
          her house, grabbed a bat and came back out.
          Appellant was on the sidewalk in front of Ebony’s
          house at the time. Gregory was standing next to
          Appellant and one of the males, later identified as
          Raphael, in front of 21 West Duval. When Appellant
          pointed Ebony and Kenneth out, members of
          Appellant’s group opened fire. Rene tried to run
          inside the house and Gregory yelled, “Bitches, don’t
          run now.”     Ebony observed Gregory shoot first
          followed by Raphael and an unidentified male.

                 Michele observed the Yukon go down the street
          before the shooting began. She heard Rene say, “he
          has something in his hand,” right before she heard
          gunshots. Michele then went towards the walkway
          that separated her house from the neighbor’s and
          laid flat on the step. Kenneth was still standing on
          the step. Although Michele had her off duty firearm,
          she did not return fire because she was unable to
          accurately observe the shooters. Michele grabbed
          Kenneth’s arm and told him to get down. After the
          shooting stopped, Kenneth got up and said he was
          shot. He had blood on his face and fell to the
          ground. Michele and other family members carried
          him to the floor inside the home while they
          attempted to stabilize his injuries.

                Abdul Torrence (Abdul), a cousin of Ebony and
          Michele, also testified at trial. Abdul testified that,
          on May 17, 2005, he and his wife, Karen, came to
          Philadelphia to visit with family and to retrieve
          documents.      At the time, he was under the
          supervision of the New York penal system, but did
          not notify his probation officer that he was going to
          Philadelphia in violation of the terms of his
          supervision. Additionally, he possessed a firearm


                                   -6-
J. S03028/16


          against the terms of his supervision. Upon arrival in
          Philadelphia, Abdul and his wife visited his
          grandmother, Georgia Torrence, and then went to
          Ebony’s house at 19 West Duval Street.           Abdul
          accompanied Ebony, Karen, Rene, and Abdul’s
          daughter when they went to the store and witnessed
          the fight between Appellant and Ebony. He testified
          that Ebony and Appellant were fighting and fell to
          the ground. Other people then tried to break the
          fight up.    Abdul observed additional males and
          females running towards the fight. He described the
          situation as chaotic with people yelling and trying to
          intervene. He did not observe Kenneth hit anyone.
          Abdul, Ebony, Karen, Rene, Kenneth, and Abdul’s
          daughter then left the area and returned to Duval
          Street.

                Upon arriving back at 19 West Duval Street
          after the incident, Abdul walked down Duval Street
          to his car which was parked about five houses down
          from Germantown Avenue. Abdul testified that he
          was standing outside smoking a cigarette when he
          noticed a little gray car, tailgating a black truck,
          drive past him. Upon seeing this, he retrieved a
          revolver from his car, put it on his hip and walked
          back to the house located at 19 West Duval Street.
          As he was about to enter the house, he saw the two
          vehicles again with the truck traveling in the rear.
          Abdul walked off the porch and onto the front lawn.
          He observed five to seven people, males and
          females, exit the car and one male exit the
          passenger’s side of the truck. He did not see the
          driver of the truck. As these individuals approached
          the house, Abdul yelled for his family to get inside
          the house. He then concealed himself by a bush
          located in front of the house and observed Gregory
          standing with an unidentified male. After hearing a
          gunshot, Abdul took out his gun and fired toward
          Gregory and the male who was on the sidewalk,
          aiming his gun towards the porch of 19 West Duval
          Street. Gregory and the unidentified male retreated
          while continuing to fire. Abdul then observed a third
          shooter come diagonally across from the area of
          26-28 Duval Street.       Abdul fired the remaining


                                  -7-
J. S03028/16


           rounds in his revolver. Moments later, the shooting
           stopped. Abdul placed his gun in his pocket and ran
           up the steps of 19 West Duval to assess the
           situation.    With police arriving, Abdul became
           concerned about possible probation violation issues
           so he left to change clothing and disposed of the
           firearm in the river. He also went to the hospital to
           check on the condition of his cousin.

                  On July 5, 2005, Officer Cherie Klinger and her
           partner Officer McKenna were in the area of 21st and
           Spencer Streets when they stopped a Pontiac Grand
           Prix, operated by Gregory, for motor vehicle
           violations. Officer Klinger noticed an empty gun
           holster, in an upright position, between Gregory and
           the edge of his seat. Officer Klinger checked the
           area around Gregory and recovered a [.]9mm Smith
           & Wesson firearm, loaded with 15 live rounds, from
           the pouch behind the passenger’s seat. Gregory told
           Officers that he did not have a permit to carry a
           weapon and he was subsequently arrested. The gun,
           bullets and holster were placed on a property receipt
           and submitted to the Firearms Identification Unit
           (FlU) for analysis. Officer Robert Stott of the FlU
           analyzed the ballistic evidence recovered from the
           shooting at Duval Street and also compared the
           ballistic evidence with the firearm recovered from
           the car stop. Officer Stott found that the firearm
           found in Gregory’s car was the gun that fired the
           .9mm FCC’s [(fired cartridge casings)] found at
           Duval Street.

                Appellant was subsequently arrested and
           charged with murder and conspiracy in the death of
           Kenneth and attempted murder, aggravated assault
           and conspiracy in the shooting of Ebony. On July 5,
           2007, Appellant was convicted of third degree
           murder, attempted murder, aggravated assault and
           two counts of conspiracy and was sentenced to
           8-16 years[’] incarceration.

PCRA court opinion, 6/17/15 at 1-8.




                                      -8-
J. S03028/16


        Post-sentence motions were denied, and on October 21, 2010, this

court affirmed the judgment of sentence.         Commonwealth v. Johnson,

No. 52 EDA 2008, unpublished memorandum (Pa.Super. filed 10/21/10).

Our supreme court denied allowance of appeal on March 15, 2011.

Commonwealth v. Johnson, No. 660 EAL 2010 (per curiam).                     On

May 27, 2011, appellant filed a timely pro se PCRA petition. Counsel was

appointed and filed an amended petition on her behalf. On March 23, 2015,

following Rule 9072 notice, appellant’s petition was dismissed without a

hearing.3 A timely notice of appeal was filed on April 17, 2015. On April 21,

2015, appellant was ordered to file a concise statement of errors complained

of on appeal within 21 days pursuant to Pa.R.A.P., Rule 1925(b),

42 Pa.C.S.A.; appellant complied on May 12, 2015, and the PCRA court has

filed a Rule 1925(a) opinion.

        Appellant has raised the following issue for this court’s review:

              I.    Did the PCRA Court err when it dismissed the
                    Defendant’s Amended PCRA Petition without a
                    Hearing and all where the Defendant properly
                    pled and would have been able to prove that
                    she was entitled to PCRA relief?

Appellant’s brief at 3.

        Initially, we recite our standard of review:


2
    Pa.R.Crim.P., Rule 907, 42 Pa.C.S.A.
3
  As explained by the PCRA court, the proceedings were continued several
times, including at appellant’s request, to locate and investigate potential
witnesses. (PCRA court opinion, 6/17/15 at 9.)


                                       -9-
J. S03028/16


            This Court’s standard of review regarding an order
            denying a petition under the PCRA is whether the
            determination of the PCRA court is supported by the
            evidence of record and is free of legal error.
            Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
            795, 799 n. 2 (2005). The PCRA court’s findings will
            not be disturbed unless there is no support for the
            findings in the certified record. Commonwealth v.
            Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),

appeal denied, 940 A.2d 365 (Pa. 2007).

            [T]he right to an evidentiary hearing on a
            post-conviction     petition   is    not    absolute.
            Commonwealth v. Jordan, 772 A.2d 1011, 1014
            (Pa.Super.2001).     It is within the PCRA court’s
            discretion to decline to hold a hearing if the
            petitioner’s claim is patently frivolous and has no
            support either in the record or other evidence. Id.
            It is the responsibility of the reviewing court on
            appeal to examine each issue raised in the PCRA
            petition in light of the record certified before it in
            order to determine if the PCRA court erred in its
            determination that there were no genuine issues of
            material fact in controversy and in denying relief
            without     conducting    an   evidentiary   hearing.
            Commonwealth v. Hardcastle, 549 Pa. 450, 454,
            701 A.2d 541, 542-543 (1997).

Id. at 882, quoting Commonwealth v. Khalifah, 852 A.2d 1238,

1239-1240 (Pa.Super. 2004).

      Appellant raises two claims of counsel ineffectiveness. First, appellant

argues that trial counsel was ineffective for failing to request a corrupt and

polluted source instruction with regard to Abdul Torrence (“Abdul”). Second,

appellant argues that appellate counsel was ineffective for failing to raise a

challenge to the sufficiency of the evidence to support her conviction for


                                    - 10 -
J. S03028/16


conspiracy to commit murder. For the reasons discussed infra, we find that

neither contention has arguable merit.

           The law presumes counsel has rendered effective
           assistance.     Commonwealth v. Gonzalez, 858
           A.2d 1219, 1222 (Pa.Super.2004), appeal denied,
           582 Pa. 695, 871 A.2d 189 (2005). To establish a
           claim of ineffective assistance of counsel, Appellant
           must demonstrate (1) the underlying claim is of
           arguable merit; (2) counsel’s action or inaction
           lacked any reasonable basis designed to effectuate
           Appellant’s interest; and (3) but for the errors and
           omissions of counsel, there is a reasonable
           probability that the outcome of the proceedings
           would have been different.       Commonwealth v.
           Johnson, 868 A.2d 1278, 1281 (Pa.Super.2005),
           appeal denied, 583 Pa. 680, 877 A.2d 460 (2005)
           (internal citations omitted); Gonzalez, supra. The
           failure to satisfy any prong of the test for
           ineffectiveness will cause the claim to fail.
           Commonwealth v. Rush, 576 Pa. 3, 838 A.2d 651
           (2003). “The threshold inquiry in ineffectiveness
           claims is whether the issue/argument/tactic which
           counsel has foregone and which forms the basis for
           the assertion of ineffectiveness is of arguable
           merit. . . .” Commonwealth v. Pierce, 537 Pa.
           514, 524, 645 A.2d 189, 194 (1994). “Counsel
           cannot be found ineffective for failing to pursue a
           baseless or meritless claim.” Commonwealth v.
           Poplawski, 852 A.2d 323, 327 (Pa.Super.2004).

Commonwealth v. Taylor, 933 A.2d 1035, 1041-1042 (Pa.Super. 2007),

appeal denied, 951 A.2d 1163 (Pa. 2008).

     Appellant argues trial counsel was ineffective for failing to request a

corrupt-source instruction in connection with Abdul’s testimony.        She

maintains she was entitled to a corrupt-source charge because there was

sufficient evidence to present a question to the jury concerning whether



                                   - 11 -
J. S03028/16


Abdul was an accomplice. Appellant argues that Abdul willingly participated

in a shoot-out on a public street. (Appellant’s brief at 9-10.) According to

appellant, by firing his weapon, Abdul encouraged others to return fire. (Id.

at 10.) Appellant contends that regardless of which side he was on, Abdul’s

criminal conduct warranted the corrupt and polluted source instruction. (Id.

at 9-10.) We disagree.

           “[I]t ‘is well established that, in any case in which an
           accomplice implicates the defendant, the [judge]
           should instruct the jury that the accomplice is a
           corrupt and polluted source whose testimony should
           be considered with caution.’” Commonwealth v.
           Hanible, 612 Pa. 183, 30 A.3d 426, 462 (2011)
           (citation omitted). A corrupt-source instruction is
           warranted where sufficient evidence is presented as
           to whether the witness is an accomplice.
           Commonwealth v. Williams, 557 Pa. 207, 732
           A.2d 1167, 1181 (1999).            An individual is an
           accomplice if, with intent to promote or facilitate the
           commission of the offense, he solicits, aids, agrees,
           or attempts to aid another person in planning or
           committing the offense. 18 Pa.C.S. § 306(c)(1).

Commonwealth v. Treiber, 121 A.3d 435, 459 (Pa. 2015).

     Instantly, Abdul was not appellant’s accomplice. He was hiding behind

a bush as appellant and her cohorts approached the house. Abdul did not

retrieve his weapon until shots were fired. As the PCRA court states, “In the

case at hand, Abdul was a relative of the decedent and was never charged

as an accomplice.    He was at the scene of the crime, but was on the

receiving end of the gunfire directed at the decedent and Ebony.”      (PCRA

court opinion, 6/17/15 at 15 (citations to the transcript omitted).)   There



                                    - 12 -
J. S03028/16


was no evidence presented at trial from which the jury could have

reasonably inferred Abdul was appellant’s accomplice.            There was no

evidence he took part in appellant’s crimes.       Because appellant was not

entitled to a corrupt-source instruction, her ineffectiveness claim fails for

lack of arguable merit.

      Next, appellant argues that appellate counsel was ineffective for failing

to challenge the sufficiency of the evidence to support her conviction of

criminal conspiracy to commit murder.4        According to appellant, she was

merely present at the scene.     (Appellant’s brief at 14.)    Appellant argues

that although she and Ebony had a history of animosity, there was no

evidence that she knew anyone was armed or incited anyone to open fire on

the decedent and his family.     (Id. at 13-14.)     Appellant argues that the

Commonwealth failed to prove a conspiratorial agreement to commit

murder; rather, appellant contends that, “[she] wanted to have a simple

fistfight while others, on their own, decided to engage in an open air, Wild

West type of shoot out.” (Id. at 15.)

                  Appellant’s initial challenge to the sufficiency of
            the evidence requires that we view the evidence, and

4
  On direct appeal, appellant argued that the evidence was insufficient to
convict her of third-degree murder. Johnson, supra at *10. However,
because she did not challenge the conviction for conspiracy, we found she
waived that challenge and was, therefore, necessarily guilty of the
underlying crime of third-degree murder.               Id. at *12, citing
Commonwealth v. McCall, 911 A.2d 992, 997 (Pa.Super. 2006) (even
where a conspirator did not act as a principal in committing the underlying
crime, she is still criminally liable for the actions of her co-conspirators)
(additional citation omitted).


                                     - 13 -
J. S03028/16


          all reasonable inferences to be drawn therefrom, in
          the light most favorable to the Commonwealth in
          deciding whether the evidence was sufficient to
          establish each element of the crimes beyond a
          reasonable doubt. Commonwealth v. McNair, 529
          Pa. 368, 371, 603 A.2d 1014 (1992).

                Moreover, “‘[w]hen conflicts and discrepancies
          arise, it is within the province of the jury to
          determine the weight to be given to each [witness’s]
          testimony and to believe all, part, or none of the
          evidence     as     [it]    deems      appropriate.’”
          Commonwealth v. Wright, 722 A.2d 157, 161
          (Pa.Super.1998)    (quoting   Commonwealth        v.
          Verdekal, 351 Pa.Super. 412, 506 A.2d 415, 419
          (1986)).

                 To convict an accused of third degree murder,
          the Commonwealth must prove that the accused
          killed another person with malice. Commonwealth
          v. Hardy, 918 A.2d 766, 774 (Pa.Super.2007).

                      The elements of third degree
               murder, as developed by case law, are a
               killing done with legal malice but without
               specific intent to kill required in first
               degree murder. Malice is the essential
               element of third degree murder, and is
               the distinguishing factor between murder
               and manslaughter.

          Commonwealth v. Cruz–Centeno, 447 Pa.Super.
          98, 668 A.2d 536, 539 (1995), allocatur denied,
          544 Pa. 653, 676 A.2d 1195 (1996).

                Malice under the law “comprehends not only a
          particular ill-will, but every case where there is
          wickedness of disposition, hardness of heart, cruelty,
          recklessness of consequences, and a mind regardless
          of social duty, although a particular person may not
          be intending to be injured.” Commonwealth v.
          Thomas, 527 Pa. 511, 514, 594 A.2d 300 (1991).
          “Malice may be inferred from the ‘attending
          circumstances of the act resulting in death.’”


                                  - 14 -
J. S03028/16


          Commonwealth v. Lee, 426 Pa.Super. 345, 626
          A.2d 1238, 1241 (1993) (quoting Commonwealth
          v. Gardner, 490 Pa. 421, 424, 416 A.2d 1007
          (1980)). Otherwise stated, malice may be found
          where the defendant has consciously disregarded an
          unjustified and extremely high risk that her conduct
          might cause death or serious injury to another.
          Commonwealth v. Young, 494 Pa. 224, 228, 431
          A.2d 230 (1981).

                 To convict of criminal conspiracy, the evidence
          must establish that the defendant entered an
          agreement with another person to commit or aid in
          the commission of an unlawful act, that the
          conspirators acted with a shared criminal intent, and
          that an overt act was done in furtherance of the
          conspiracy. 18 Pa.C.S.A. § 903; Commonwealth v.
          Johnson, 719 A.2d 778, 784 (Pa.Super.1998),
          allocatur denied, 559 Pa. 689, 739 A.2d 1056
          (1999). “An explicit or formal agreement to commit
          crimes can seldom, if ever, be proved and it need
          not be, for proof of a criminal partnership is almost
          invariably extracted from the circumstances that
          attend    its   activities.”    Commonwealth v.
          Swerdlow, 431 Pa.Super. 453, 636 A.2d 1173,
          1177 (1994). “An agreement sufficient to establish a
          conspiracy can be inferred from a variety of
          circumstances including, but not limited to, the
          relation between the parties, knowledge of and
          participation in the crime, and the circumstances and
          conduct of the parties surrounding the criminal
          episode.”       Commonwealth v. Rivera, 432
          Pa.Super. 88, 637 A.2d 997, 998 (1994) (en
          banc)[.]

                Once a conspiracy is established, the actions of
          each co-conspirator may be imputed to the other
          conspirators.    In this regard, “[t]he law in
          Pennsylvania is settled that each conspirator is
          criminally responsible for the actions of his
          co-conspirator, provided that the actions are
          accomplished in furtherance of the common design.”
          Commonwealth v. Baskerville, 452 Pa.Super. 82,
          681 A.2d 195, 201 (1996). Furthermore,


                                  - 15 -
J. S03028/16



                           Where      the    existence   of     a
                     conspiracy is established, the law
                     imposes     upon     a   conspirator    full
                     responsibility for the natural and
                     probable      consequences       of    acts
                     committed by his fellow conspirator or
                     conspirators if such acts are done in
                     pursuance of the common design or
                     purpose of the conspiracy.            Such
                     responsibility attaches even though such
                     conspirator was not physically present
                     when the acts were committed by his
                     fellow conspirator or conspirators and
                     extends even to a homicide which is a
                     contingency of the natural and probable
                     execution of the conspiracy, even though
                     such   homicide      is   not   specifically
                     contemplated by the parties.

            Commonwealth v. Eiland, 450 Pa. 566, 570-71,
            301 A.2d 651 (1973).

Commonwealth v. Geiger, 944 A.2d 85, 90-91 (Pa.Super. 2008), appeal

denied, 964 A.2d 1 (Pa. 2009).

      Instantly, the Commonwealth established that appellant and Ebony

had a long history of animosity revolving around their relationship with

Gregory.   Ebony had been dating Gregory, who was also the father of

appellant’s child.      During one incident while appellant was pregnant,

appellant’s friends confronted Ebony at a restaurant and physically attacked

her while appellant stood by and watched. On May 17, 2005, the night of

the shooting, appellant and Ebony were fighting and had to be physically

separated. Appellant and an unidentified female companion were yelling at

Kenneth and threatening him due to his interference.


                                       - 16 -
J. S03028/16


         Shortly thereafter, Ebony received a phone call from Gregory,

threatening that when he saw her again, “it’s a wrap.” When appellant and

her cohorts, including Gregory, arrived at 19 West Duval Street, they were

yelling and screaming.      As appellant got closer to the front porch, she

pointed out Kenneth and Ebony to the rest of the group.         Kenneth, the

decedent, sustained a fatal gunshot to the head; Ebony was shot in the arm.

Police recovered 21 FCC’s from the scene including seven that were fired

from the .9mm Smith & Wesson recovered from Gregory’s vehicle.

Johnson, supra at *9, citing trial court opinion, 9/17/09 at 1-14. Appellant

and her cohorts left the scene together.      Later, when appellant made the

report to police, she did not mention the shooting at 19 West Duval Street

and told police that she did not know the baby’s father’s name or where he

lived.

         Viewing the evidence in the light most favorable to the Commonwealth

as verdict winner, it was overwhelmingly sufficient to support appellant’s

conviction of criminal conspiracy to commit third-degree murder. Appellant

was more than merely present at the scene of the shooting. As the PCRA

court states, “The overarching context of the events was the long running

dispute between Ebony and Appellant that involved both verbal and physical

confrontations stemming from their mutual relationship with Gregory.”

(PCRA court opinion, 6/17/15 at 13.) As the underlying issue lacks arguable

merit and would not have been successful on direct appeal, appellate



                                     - 17 -
J. S03028/16


counsel cannot be held ineffective for failing to have raised it.   This claim

fails.5

          Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/15/2016




5
  In her Rule 1925(b) statement, appellant also alleged that trial counsel
was ineffective for failing to call certain witnesses. (Docket #24.) However,
as the PCRA court observes, despite being provided with funds for an
investigator, appellant’s final amended PCRA petition does not identify any
potential witnesses. (PCRA court opinion, 6/17/15 at 15.) Apparently,
appellant has abandoned this argument on appeal.


                                   - 18 -
