Com. v. Evans, M.

J-S04018-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

MICHAEL EVANS,

Appellant No. 47 WDA 2015

Appeal from the PCRA Order of April 13, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0010679-2009

BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.: FILED FEBRUARY 22, 2016

Appellant, Michael Evans, appeals from the order dated December 8,

2014 and entered April 13, 2015, which dismissed his second petition filed

under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.

We affirm.

The trial court previously summarized the underlying facts of this case:

On June 20, 2009, James Williams saw two young black
males enter 228 Perry Street, McKeesport, Pennsylvania,
the home of the victim, Tami Heckman[; Ms. Heckman was]
Williams’ neighbor. Ryan Williams, the son of James
Williams, heard the sound of gunshots, then saw two males,
one of whom he could identify as black, running from the
residence. Numerous witnesses heard shots fired in the
vicinity of 228 Perry Street. One of the witnesses, Daniel
McGhen, followed two males he observed running from the
vicinity of 228 Perry [Street] to a bus shelter. One of the
males was carrying something that the witness thought
looked like a basket.

*Retired Senior Judge assigned to the Superior Court.
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Officer Mark Marino received a report of two black males in
dark clothing fleeing the scene, one of whom was carrying
what dispatch described as a baby bag. The officer traveled
toward a bus shelter, one of the few exit points from the
area where the men were seen running. He observed a
black male in dark clothing sweating profusely at the bus
shelter. The officer got out of his car, saw another male
just beyond the shelter and detained both individuals.
Subsequently, the individuals were identified as Calvin
Loving and Appellant.

Officer Steven Kondrosky, who arrived just after Officer
Marino, assisted Officer Marino with the arrest and observed
Appellant drop what the officer referred to as a laundry bag.
Officer Kondrosky observed Appellant begin to walk away
from the bag. After handcuffing Appellant, Officer
Kondrosky went over to the bag and saw the barrel of a
firearm clearly visible inside the bag. The officer observed
that this weapon, a .357 caliber revolver, was fully loaded
and had spent casings inside. The officer removed the
firearm from the bag and observed a second weapon in the
bag. Officer Kondrosky also noted that Appellant did not act
like or smell like an intoxicated individual.

The .357 revolver recovered by Officer Kondrosky was
tested by Thomas Morgan, an expert firearms examiner
with the Allegheny County Medical Examiner’s Office.
Morgan testified that the gun was in good operating
condition and that the cartridge casings and all of the
bullets tested, including a bullet fragment recovered from
the autopsy of the victim, all matched the bullets test fired
from the .357 revolver recovered by Officer Kondrosky.[fn.1]

[fn.1] Daniel Wolfe of the Allegheny County Medical
Examiner’s [O]ffice also testified that Appellant had
gunshot residue on both hands consistent with
discharging a firearm.

Dr. Todd Luckasevic performed the autopsy of [Tami]
Heckman. [Dr. Luckasevic] testified that Ms. Heckman [had
five gunshot wounds], with the most lethal shot entering
[Ms. Heckman] from the back.

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Calvin Loving testified that he went with Appellant to rob an
individual who was known to sell drugs. That individual, the
son of Tami Heckman, was not home. Loving testified that
Appellant had two guns and gave one to Loving but Loving
believed the gun he was given was not loaded. According
to Loving, Appellant retained the .357 revolver. Loving
testified that he and Appellant entered [Ms.] Heckman’s
residence and Appellant held the victim at gunpoint while
Loving took various items within her residence. [Loving
testified] that he observed Appellant strike [Ms. Heckman]
on the head with his gun. [Loving testified that Ms.
Heckman] attempted to flee[; according to Loving, he then]
heard shots from the kitchen area, where only Appellant
was located. Loving then [testified] that he and Appellant
ran out of the front of the house after [Ms. Heckman] had
been shot.

Detective Langan testified that he interviewed Appellant
after [the] arrest. Detective Langan [testified that]
Appellant admitted shooting the victim. Appellant
elaborated to the detective, stating that he missed her with
the first shot, hit her with the second shot[,] and the third
shot “put her down.”

Trial Court Opinion, 3/9/11, at 1 and 4-6 (internal citations omitted).

Prior to trial, Appellant filed a motion to suppress his post-arrest

confession. Within the written suppression motion, Appellant claimed that,

under the totality of the circumstances, his custodial confession was not

voluntary, as it was the product of his “intoxicated state, the lack of

Miranda[1] [w]arnings, the refusal to grant him his request for counsel, and

____________________________________________

1
Miranda v. Arizona, 384 U.S. 436 (1966).

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the [five] hour delay between arrest and confession.” Appellant’s Motion to

Suppress, 9/15/10, at 5-6.

With respect to Appellant’s suppression motion, the following relevant

evidence was presented to the trial court:2, 3

____________________________________________

2
On October 30, 2013, our Supreme Court decided In re L.J., 79 A.3d
1073, 1087 (Pa. 2013). In L.J., our Supreme Court held that appellate
scope of review from a suppression ruling is limited to the evidentiary record
that was created at the suppression hearing. In re L.J., 79 A.3d 1073,
1087 (Pa. 2013). Prior to L.J., this Court routinely held that, when
reviewing a suppression court’s ruling, our scope of review included “the
evidence presented both at the suppression hearing and at trial.” See
Commonwealth v. Charleston, 16 A.3d 505, 516 (Pa. Super. 2011),
quoting Commonwealth v. Chacko, 459 A.2d 311, 317 n.5 (Pa. 1983).
L.J. thus narrowed our scope of review of suppression court rulings to the
evidence presented at the suppression hearing.

However, L.J. declared that the new procedural rule of law it announced was
not retroactive, but was rather “prospective generally” – meaning that the
rule of law was applicable “to the parties in the case and [to] all litigation
commenced thereafter.” In re L.J., 79 A.3d at 1089 n.19. Since the
litigation in the current case commenced before L.J. was filed, the new
procedural rule of law announced in L.J. did not apply to the case at bar.
See id. Thus, in summarizing the evidence that is relevant to Appellant’s
suppression motion, we include the evidence that was presented during both
Appellant’s September 27, 2010 suppression hearing and Appellant’s jury
trial.
3
The trial court denied Appellant’s motion to suppress. Trial Court Order,
9/27/10, at 1. Thus, in summarizing the evidence that is relevant to
Appellant’s suppression motion, we “consider only the evidence of the
prosecution and so much of the evidence of the defense as remains
uncontradicted when read in the context of the record.” Commonwealth v.
Eichinger, 915 A.2d 1122, 1134 (internal citations omitted).

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• At 1:28 a.m. on June 20, 2009,4 Officer Marino received a dispatch

that shots were fired from a residence in the 200 block of Perry Street.

N.T. Suppression Hearing, 9/27/10, at 17.

• At 1:33 a.m., City of McKeesport Police Officers Marino and Kondrosky

arrested both Appellant and Mr. Loving. Id. at 28. The police then

transported Appellant and Mr. Loving to the McKeesport Police Station.

N.T. Jury Trial, 9/28/10, at 98-99.

• At 4:10 a.m., Detectives Patrick Kinavey and Timothy Langan, of the

Allegheny County Police Department, transported Appellant and Mr.

Loving from the McKeesport Police Station to Allegheny County Police

Department headquarters, which is located in the Point Breeze

neighborhood of Pittsburgh. Id. at 256. The trip took 30 minutes and

they arrived at headquarters at approximately 4:45 a.m. Id. at 257.

Upon arrival, the detectives placed Appellant and Mr. Loving in

separate interview rooms. Id. at 258.

• At approximately 5:00 a.m., the detectives began to interview Mr.

Loving. The interview with Mr. Loving lasted approximately one-and-

a-half hours and concluded at a little before 6:20 a.m. Id. at 259.

During this time, Appellant sat in his separate interview room. Id.

____________________________________________

4
All of the relevant, underlying events of this case occurred on June 20,
2009. Thus, for purposes of this evidentiary summary, we will not repeat
the date of the events.

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• At approximately 6:20 a.m., Detectives Kinavey and Langan entered

Appellant’s interview room and formally introduced themselves to

Appellant. Id. at 260.

• At approximately 6:28 a.m., Detectives Kinavey and Langan began

their interview of Appellant. N.T. Suppression Hearing, 9/27/10, at

46-47. At the outset of the interview, the detectives:

informed [Appellant] that a woman had been found dead,
shot to death, in the City of McKeesport. That an individual
had followed [Appellant] from the location where the
shooting had occurred, and that . . . the gunshot residue
test that [the police] performed on [Appellant’s] hands was
for any trace amounts of gunshot residue that might show
up from somebody that may have fired a weapon.

Id. at 47.

• At approximately 6:28 a.m., the detectives presented a “Waiver of

Rights” form to Appellant, “so [that Appellant] could read along as the

form was read to him.” N.T. Jury Trial, 9/29/10, at 264. Appellant

signed the form at 6:28 a.m. Id. In doing so, Appellant

acknowledged he was aware that: 1) he has a right to remain silent;

2) anything he says “can and will be used against [him] in a [c]ourt of

law;” 3) he has “a right to speak to an attorney, and have him or her

present before and during questioning;” and, 4) if he “cannot afford

an attorney, one will be appointed free of charge before or during any

questioning if [he] so desires.” N.T. Suppression Hearing, 9/27/10, at

48-49. Appellant also acknowledged that he “underst[ood] each of

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these rights that [the detectives] explained” and that, “[h]aving these

rights in mind,” he still wished to speak to the detectives. Id. at 49.

• At no point “before or during [the custodial] interview” did Appellant:

“demonstrate to either [Detective Kinavey] or Detective Langan . . .

that he was under the influence of alcohol;” “manifest any type of

sign that he was impaired;” “tell [Detective Kinavey] that he was

unable to understand what was occurring in that interview room;” ask

“for the opportunity to speak with a lawyer;” or, “ask that the

interview be interrupted or stopped.” Id. at 51-53; see also N.T.

Jury Trial, 9/29/10, at 260-262, 266, and 274.

• The detectives interviewed Appellant from approximately 6:30 a.m.

until approximately 8:00 a.m. N.T. Jury Trial, 9/30/10, at 304-305.

During this time, Appellant provided the detectives with three

differing versions of the events. Id. at 302-304. In the first version,

Appellant stated that he had no involvement in either the robbery or

the murder and that he was simply in the wrong place at the wrong

time. See N.T. Jury Trial, 9/29/10, at 266-267. The detectives

“explained to [Appellant] that [the first statement] was simply not

true” and Appellant “acknowledged the fact that he was being

deceptive.” Id. at 267-268. In the second version, Appellant stated

that he went to the victim’s home alone so that he could purchase

marijuana and, while he was in the house, “he thought [the victim]

was going to kill him . . . [so he] shot her two times.” Id. at 269.

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The detectives informed Appellant that the story was still false. Id. at

270. Appellant then admitted to the following:

[The victim invited Appellant and Mr. Loving into her house;
when Appellant and Mr. Loving entered the house,
Appellant] produced a .357 Magnum and held it to the
victim, and began leading her around the home robbing the
residence. . . . [When the victim was in the doorway
between the kitchen and the dining room, the victim made]
a dashing movement . . . [and Appellant] fired three times
at the victim. . . . [H]e missed her with the first shot, hit
her with the second shot, and [in Appellant’s] words, the
third shot put her down.

Id. at 271-272.

• At approximately 8:00 a.m., the detectives “concluded the[ir] oral

interview with [Appellant].” N.T. Jury Trial, 9/29/10, at 275.

• At approximately 11:26 a.m., the detectives asked Appellant whether

he would like to make a “voluntary recorded statement” into a tape

recorder. Id. at 277-278. Appellant agreed and, in the recorded

statement, Appellant again confessed to robbing and murdering the

victim. N.T. Jury Trial, 9/30/10, at 289-301.

• At some point that day, a criminal complaint was filed against

Appellant and, at 7:30 p.m. that day, Appellant had his preliminary

arraignment. See Criminal Complaint, 6/20/09, at 1-4; Notice of

Preliminary Arraignment, 6/20/09, at 1.

At the conclusion of the suppression hearing, Appellant’s counsel

argued that Appellant’s confession must be suppressed because:

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we heard testimony regarding the statement provided. And
what I would argue to the [trial c]ourt with regards to why
the statement itself should be suppressed . . . is obviously,
we have to look at the totality of the circumstances here.
That is the test that is to be applied.

[Appellant] has indicated that he was not apprised of his
rights. He was never given an opportunity to read the
Miranda waiver form, and instead he was simply given a
form to sign. . . .

What we do know is that [Appellant] is arrested at 1:30 in
the morning and it is not until 6:30 in the morning that he
signs the Miranda waiver form. We have a five hour
window of time during which he is being questioned and
asked things and five hours between when he is arrested
and when he signs the Miranda waiver forms. We have an
additional five hours between the signing of those Miranda
forms and the taped statement that police provide. This is
a lengthy, long encounter during which he is being
questioned and he is being told that they were questioning
Calvin Loving. He is being told you are lying to us, we want
the true story. Calvin Loving has told us this. He is being
fed information and asked questions based upon the fact
they are interviewing another individual. The length of time
alone, I submit, is enough to suppress the statement.

N.T. Suppression Hearing, 9/27/10, at 115-117.

The trial court denied Appellant’s motion to suppress and, after a jury

trial, Appellant was found guilty of second-degree murder, robbery, criminal

conspiracy, firearms not to be carried without a license, and persons not to

possess a firearm.5 That same day, the trial court sentenced Appellant to

serve a term of life in prison without the possibility of parole on the murder

____________________________________________

5
18 Pa.C.S.A. §§ 2502(b), 3701(a)(1)(i), 903(a)(1), 6106(a)(1), and
6105(a)(1), respectively.

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conviction, a consecutive sentence of 80 to 160 months in prison on the

robbery conviction, a consecutive sentence of 50 to 100 months in prison for

the persons not to possess a firearm conviction, and a concurrent sentence

of life in prison without the possibility of parole on the criminal conspiracy

conviction. However, on March 9, 2011, the trial court vacated Appellant’s

sentence in part. Specifically, the trial court vacated Appellant’s sentence

for criminal conspiracy and resentenced Appellant to serve a concurrent

sentence of 20 to 40 years in prison for that conviction. Trial Court Order,

3/9/11, at 1.

Appellant filed a timely notice of appeal from his judgment of

sentence. Within Appellant’s brief to this Court, Appellant claimed (among

other things) that “the trial court erred in denying [Appellant’s] pre-trial

motion to suppress statements given to the police under coercion and while

intoxicated.” See Commonwealth v. Evans, 43 A.3d 530 (Pa. Super.

2012) (unpublished memorandum) at 4, appeal denied, ___ A.3d ___, 69

WAL 2012 (Pa. 2012). We concluded that this particular claim was waived

because Appellant’s “brief contains no argument in support of [the claim].”

Id. We found no merit to Appellant’s remaining issues and we thus affirmed

Appellant’s judgment of sentence on January 31, 2012. The Pennsylvania

Supreme Court then denied Appellant’s petition for allowance of appeal on

July 16, 2012. Commonwealth v. Evans, 43 A.3d 530 (Pa. Super. 2012)

(unpublished memorandum) at 1-10, appeal denied, ___ A.3d ___, 69 WAL

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2012 (Pa. 2012). Appellant did not file a petition for a writ of certiorari with

the United States Supreme Court.

On August 16, 2012, Appellant filed a pro se PCRA petition. The PCRA

court appointed counsel to represent Appellant and, on October 25, 2012,

appointed counsel filed an amended PCRA petition. Appellant raised the

following claims within his amended PCRA petition: 1) trial counsel was

ineffective for failing to properly cross-examine Officer Kondrosky, Officer

Marino, and Calvin Loving; and, 2) trial counsel was ineffective for failing to

“effectively cross-examine another Commonwealth witness, Daniel McGhen,

when [trial counsel] failed to probe [Mr. McGhen’s] credibility and [the]

reliability of his testimony.” Appellant’s Amended First PCRA Petition,

10/25/12, at 1-5.

On January 25, 2013, the PCRA court dismissed Appellant’s first PCRA

petition without holding a hearing. PCRA Court Order, 1/25/13, at 1.

Appellant did not file a notice of appeal from the PCRA court’s order.

On September 20, 2013, Appellant filed a timely,6 pro se, second PCRA

petition. The PCRA court appointed another attorney to represent Appellant
____________________________________________

6
The Pennsylvania Supreme Court denied Appellant’s petition for allowance
of appeal on July 16, 2012. Appellant’s judgment of sentence then became
final 91 days after this date (or, on Monday, October 15, 2012), when the
time for filing a petition for a writ of certiorari with the United States
Supreme Court expired. U.S.Sup.Ct.R. 13(1); 42 Pa.C.S.A. § 9545(b)(3)
(“[f]or purposes of [the PCRA], a judgment becomes final at the conclusion
of direct review, including discretionary review in the Supreme Court of the
United States and the Supreme Court of Pennsylvania, or at the expiration of
(Footnote Continued Next Page)

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and, on February 21, 2014, appointed counsel filed an amended second

PCRA petition. Appellant pleaded the following claims in his amended

second PCRA petition:

[1)] PCRA counsel was ineffective for failing to raise trial
counsel’s ineffectiveness for failing to file a motion to
suppress [Appellant’s] confession as a violation of the
presentment requirements [under] Pennsylvania Rule of
Criminal Procedure 519[;]

...

[2)] PCRA counsel was ineffective for her failure to claim
that trial counsel was ineffective for failing to object to the
presence of Calvin Loving’s counsel with him on the stand[;
and,]

...

[3)] PCRA counsel was ineffective for her failure to claim
that appellate counsel was ineffective for his failure to
properly brief and preserve [Appellant’s] Miranda
suppression issue for appeal[.]

Appellant’s Amended Second PCRA Petition, 2/21/14, at ¶¶ 61-67.

The PCRA court dismissed Appellant’s second PCRA petition in an order

dated December 8, 2014 and entered April 13, 2015. PCRA Court Order,

4/13/15, at 1. Appellant filed a timely notice of appeal and Appellant now

raises the following claims to this Court:

_______________________
(Footnote Continued)

time for seeking the review”). Appellant filed his second PCRA petition on
September 20, 2013. The petition is thus timely, as it was filed “within one
year of the date [Appellant’s] judgment [of sentence became] final.” 42
Pa.C.S.A. § 9545(b)(1).

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[1.] Whether the [PCRA] Court erred in finding that the
issues raised in [Appellant’s] second PCRA petition were
waived when the second petition was timely filed and the
ineffectiveness of PCRA counsel was never previously
litigated?

[2.] Whether the [PCRA] Court erred in finding that PCRA
counsel was not ineffective for failing to raise trial counsel’s
ineffectiveness for failing to file a suppression motion under
Pennsylvania Rule of Criminal Procedure 519 even though
[Appellant] was held in police custody for ten hours prior to
providing his recorded statement?

[3.] Whether the [PCRA] Court erred when it found that
PCRA counsel was not ineffective for failing to raise and
argue that appellate counsel was ineffective for failing to
plead and preserve the Miranda suppression issue raised
by trial counsel where [Appellant] was in police custody for
five hours prior to being given his Miranda rights, and the
record shows that the trial court based its denial of the
suppression motion improperly on [Appellant’s] credibility
related to collateral matters?

[4.] Whether the [PCRA] Court erred when it found that
PCRA counsel was not ineffective for failing to argue that
trial counsel was ineffective for failing to timely object to
the presence of a testifying co[-]defendant’s attorney on the
stand with him during testimony even though the record
was not fully developed as to the nature or scope of the
assistance the attorney provided to the client?

Appellant’s Brief at 4-5 (some internal capitalization omitted).7

As we have stated:

[t]his Court’s standard of review regarding an order
dismissing a petition under the PCRA is whether the
determination of the PCRA court is supported by evidence of
record and is free of legal error. In evaluating a PCRA
court’s decision, our scope of review is limited to the
____________________________________________

7
For ease of discussion, we have re-ordered Appellant’s claims on appeal.

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findings of the PCRA court and the evidence of record,
viewed in the light most favorable to the prevailing party at
the trial level. We may affirm a PCRA court’s decision on
any grounds if it is supported by the record.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010) (internal

citations omitted).

To be eligible for relief under the PCRA, the petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted from “one or more” of the seven, specifically enumerated

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily

enumerated circumstances is the “[i]neffectiveness 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.A. § 9543(a)(2)(ii).

Counsel is, however, presumed to be effective and “the burden of

demonstrating ineffectiveness rests on [A]ppellant.” Commonwealth v.

Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). To satisfy this burden,

Appellant must plead and prove by a preponderance of the evidence that:

(1) 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 have been different.

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). “A failure to

satisfy any prong of the test for ineffectiveness will require rejection of the

claim.” Id.

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Further, in reviewing Appellant’s claims:

we must be mindful that this is his second collateral attack
on his convictions and judgment of sentence. Thus,
[Appellant’s] request for relief will not be entertained unless
a strong prima facie showing is offered to demonstrate that
a miscarriage of justice may have occurred. An appellant
makes such a prima facie showing only if he demonstrates
that either the proceedings which resulted in his conviction
were so unfair that a miscarriage of justice occurred which
no civilized society could tolerate, or that he was innocent of
the crimes for which he was charged.

Commonwealth v. Morales, 701 A.2d 516, 520-521 (Pa. 1997) (internal

citations and quotations omitted); see also Commonwealth v. Marshall,

947 A.2d 714, 719 (Pa. 2008) (same).

Appellant does not claim that he was actually innocent of the crimes

for which he was convicted. Therefore, before the courts may entertain

Appellant’s second PCRA petition, Appellant must demonstrate that “the

proceedings which resulted in his conviction were so unfair that a

miscarriage of justice occurred which no civilized society could tolerate.”

Morales, 701 A.2d at 520-521.

All of Appellant’s substantive claims assert that the PCRA court erred

when it dismissed one of his properly-layered ineffective assistance of

counsel claims without holding a hearing. Since all of Appellant’s claims

assert that his PCRA counsel was ineffective for failing to raise certain issues

in his initial PCRA petition – and since this is the first time that Appellant had

the opportunity to argue that his initial PCRA counsel was ineffective – none

of Appellant’s current ineffective assistance of counsel claims are waived

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under the PCRA. See 42 Pa.C.S.A. § 9544(b) (“an issue is waived [under

the PCRA] if the petitioner could have raised it but failed to do so before

trial, at trial, . . . on appeal or in a prior state post[-]conviction

proceeding”). Therefore, to the extent the PCRA court found that Appellant’s

properly-layered ineffective assistance of counsel claims were waived under

the PCRA, we agree with Appellant that the conclusion was made in error.

See PCRA Court Opinion, 4/8/15, at 2. Nevertheless, we conclude that the

PCRA court did not err when it dismissed Appellant’s second PCRA petition

without holding a hearing, as all of Appellant’s claims are meritless.

Commonwealth v. Cassidy, 462 A.2d 270, 272 (Pa. Super. 1983) (holding

that the Superior Court “will affirm the trial court’s decision if the result is

correct on any ground, without regard to the grounds on which the trial

court relied”).

Appellant contends that the PCRA court erred in dismissing his layered

claim that his PCRA counsel was ineffective for not raising the claim that his

trial counsel was ineffective when trial counsel failed to seek the suppression

of Appellant’s post-arrest, pre-arraignment, custodial confession.

Appellant’s Brief at 19. Specifically, Appellant claims that his trial counsel

should have filed a suppression motion and claimed that Appellant’s

confession was involuntary, as it was given long after Appellant’s arrest and

without Appellant having been arraigned. Id. at 22-23. This claim fails

because Appellant’s trial counsel, in fact, filed a suppression motion and

claimed that Appellant’s post-arrest custodial confession was involuntary and

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must be suppressed because (among other things) it was the product of

Appellant’s lengthy post-arrest detention and interrogation. Appellant’s

Motion to Suppress, 9/15/10, at 5-6; N.T. Suppression Hearing, 9/27/10, at

116. Therefore, since Appellant’s trial counsel raised the issue below,

Appellant’s initial PCRA counsel could not have been ineffective for failing to

claim otherwise. Appellant’s layered ineffective assistance of counsel claim

thus fails. We will explain.

In relevant part, Pennsylvania Rule of Criminal Procedure 519

provides:

. . . when a defendant has been arrested without a warrant
in a court case, a complaint shall be filed against the
defendant and the defendant shall be afforded a preliminary
arraignment by the proper issuing authority without
unnecessary delay.

Pa.R.Crim.P. 519(A)(1).

As the Pennsylvania Supreme Court has explained:

the right to prompt arraignment . . . is not constitutionally
mandated, but it ensures a defendant is afforded the
constitutional rights protected by [Pennsylvania Rule of
Criminal Procedure] 540, which requires the issuing
authority to: read the complaint to a defendant to inform
him of the nature of the charges against him, Pa. Const. art.
I, § 9; inform him of his right to counsel, U.S. Const.
Amends. VI, XIV, Pa. Const. art. I, § 9; and inform him of
his right to reasonable bail. Pa. Const. art. 1, § 14. See
Pa.R.Crim.P. 540(E)(1)-(3), (G). Prompt arraignment also
protects a defendant’s right to be free from unreasonable
seizure of his person[,] U.S. Const. Amends. IV, XIV, Pa.
Const. art. I, § 8 . . . [and] guard[s] against the coercive
influence of custodial interrogation.

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Commonwealth v. Perez, 845 A.2d 779, 782-783 (Pa. 2004) (some

internal quotations and citations omitted).

In Perez, the Pennsylvania Supreme Court summarized the evolution

of its approach to enforcing the prompt arraignment requirement. The

Perez Court explained:

[Prior to 1977,] to enforce the prompt arraignment
requirement, [the Pennsylvania Supreme Court] held all
evidence obtained during unnecessary delay between arrest
and arraignment was inadmissible, unless the evidence bore
no relationship to the delay. . . .

[In Commonwealth v. Davenport, 370 A.2d 301 (Pa.
1977), the Supreme] Court adopted a rule that made the
admissibility of statements obtained between arrest and
arraignment dependent on the length of time between these
events: “[i]f the accused [was] not arraigned within six
hours of arrest, any statement obtained after arrest but
before arraignment [was not] admissible at trial.” Id. [at
306].

In [Commonwealth v. Duncan, 525 A.2d 1177 (Pa. 1987)
(plurality), a plurality of the Supreme Court modified the
rule,] in response to a decade of mechanical enforcement of
the six-hour period. . . . [The Duncan plurality declared
that,] in determining whether to suppress an incriminating
statement, “the focus should be upon when the statement
was obtained, i.e., within or beyond the six-hour period.”
Id. [at 1182 (internal emphasis omitted)]. Accordingly, the
rule was modified to allow the admission of statements
made within six hours of arrest, regardless of when
arraignment occurred, as such statements were not the
product of delay.

Perez, 845 A.2d at 783.

In its 2004 Perez opinion, the Pennsylvania Supreme Court eliminated

the strict “six-hour rule” and held that “the time that elapses between arrest

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and arraignment, by itself, is not grounds for suppression.” Id. at 787.

Rather, the Supreme Court held, the length of time an accused has spent in

custody prior to confessing was simply “one factor that must be considered

in determining whether, in the totality of circumstances,” the accused’s

statement was voluntary. Id. As the Perez Court held:

in determining the admissibility of all statements, regardless
of the time of their making, courts must consider the
totality of the circumstances surrounding the confession.
The factors noted [by the Supreme Court of Michigan] in
[People v. Cipriano, 429 N.W.2d 781 (Mich. 1997),] are
relevant, as are those which have traditionally been
recognized in determining the voluntariness of a
confession[. The factors noted in Cipriano were]:

unnecessary delay in arraignment[;] . . . the accused’s age;
his level of education and intelligence; the extent of his
previous experience with police; the repeated and
prolonged nature of the questioning; the length of detention
prior to the confession; whether he was advised of his
constitutional rights; whether he was injured, ill, drugged,
or intoxicated when he confessed; whether he was deprived
of food, sleep, or medical attention; and whether he was
physically abused or threatened with abuse.

. . . Some of the [other] factors to be considered include:
the duration and means of interrogation; the defendant's
physical and psychological state; the conditions attendant to
the detention; the attitude exhibited by the police during
the interrogation; and any other factors which may serve to
drain one's powers of resistance to suggestion and coercion.

Perez, 845 A.2d at 785 and 787 (some internal citations and quotations

omitted), quoting in part Cipriano, 429 N.W.2d at 790.

In the current appeal, Appellant claims that his PCRA counsel was

ineffective for “failing to raise trial counsel’s ineffectiveness for failing to file

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a suppression motion under Pennsylvania Rule of Criminal Procedure 519

even though [Appellant] was held in police custody for ten hours prior to

providing his recorded statement.” Appellant’s Brief at 4. However, as

outlined above, Appellant’s trial counsel, in fact, claimed that the trial court

must suppress Appellant’s custodial confession, as it was the product of

Appellant’s lengthy post-arrest detention and interrogation. Indeed, within

Appellant’s written suppression motion, Appellant claimed that his custodial

confession was involuntary, as it was the product of his “intoxicated state,

the lack of Miranda[8] [w]arnings, the refusal to grant him his request for

counsel, and the [five] hour delay between arrest and confession.”

Appellant’s Motion to Suppress, 9/15/10, at 5-6 (emphasis added). Further,

during both the suppression hearing and trial, the Commonwealth and

Appellant created a comprehensive record that detailed: the length and

circumstances of Appellant’s post-arrest detention; the reasons for the

detention; the length of Appellant’s interrogation; the means of Appellant’s

interrogation; Appellant’s physical and psychological state during the

detention and interrogation; and, the attitudes exhibited by the detectives

during Appellant’s detention and interrogation. See supra at **4-9.

Finally, during the suppression hearing, Appellant’s trial counsel expressly

____________________________________________

8
Miranda v. Arizona, 384 U.S. 436 (1966).

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claimed that the trial court must suppress the confession because it was the

product of Appellant’s lengthy post-arrest detention and interrogation. As

Appellant’s trial counsel argued at the suppression hearing:

And what I would argue . . . with regards to why the
statement itself should be suppressed . . . is obviously, we
have to look at the totality of the circumstances here.

...

What we do know is that [Appellant] is arrested at 1:30 in
the morning and it is not until 6:30 in the morning that he
signs the Miranda waiver form. We have a five hour
window of time during which he is being questioned
and asked things and five hours between when he is
arrested and when he signs the Miranda waiver
forms. We have an additional five hours between the
signing of those Miranda forms and the taped
statement that police provide. This is a lengthy, long
encounter during which he is being questioned and he
is being told that they were questioning Calvin Loving. He
is being told you are lying to us, we want the true story.
Calvin Loving has told us this. He is being fed information
and asked questions based upon the fact they are
interviewing another individual. The length of time
alone, I submit, is enough to suppress the statement.

N.T. Suppression Hearing, 9/27/10, at 115-117 (emphasis added).

Therefore, although Appellant’s trial counsel did not phrase Appellant’s

suppression claim in terms of Pennsylvania Rule of Criminal Procedure 519,

the substance of the claim was the same. Specifically, Appellant’s trial

counsel claimed that Appellant’s lengthy post-arrest detention and

interrogation required the suppression of Appellant’s custodial confession.

Under Perez, this claim is substantively identical to the claim Appellant

currently raises: that trial counsel was ineffective “for failing to file a

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suppression motion under Pennsylvania Rule of Criminal Procedure 519 even

though [Appellant] was held in police custody for ten hours prior to providing

his recorded statement.” Appellant’s Brief at 4. Thus, since Appellant’s trial

counsel raised the underlying substantive claim that is at issue, Appellant’s

PCRA counsel could not have been ineffective for “failing to raise trial

counsel’s ineffectiveness for failing to file a suppression motion under

Pennsylvania Rule of Criminal Procedure 519 even though [Appellant] was

held in police custody for ten hours prior to providing his recorded

statement.” Appellant’s Brief at 4. Appellant’s claim to the contrary fails.

Next, Appellant claims that his PCRA counsel was ineffective “for failing

to raise and argue [the claim] that appellate counsel was ineffective for

failing to plead and preserve the Miranda suppression issue raised by trial

counsel.” Appellant’s Brief at 4. According to Appellant, the totality of the

circumstances in this case demonstrates that Appellant’s post-arrest

confession was coerced and that the trial court erred when it denied his pre-

trial motion to suppress. Appellant thus claims that his appellate counsel

was ineffective for failing to properly raise, on direct appeal, the claim that

the suppression court erred in denying his suppression motion – and that his

PCRA counsel was ineffective for failing to raise the claim in his initial PCRA

petition. Appellant’s Brief at 33-37. This ineffective assistance of counsel

claim fails because the underlying substantive claim has no merit.

“Once a motion to suppress evidence has been filed, it is the

Commonwealth’s burden to prove, by a preponderance of the evidence, that

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the challenged evidence was not obtained in violation of the defendant’s

rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047-1048 (Pa.

Super. 2012) (en banc); see also Pa.R.Crim.P. 581(H). With respect to an

appeal from the denial of a motion to suppress, our Supreme Court has

declared:

Our standard of review in addressing a challenge to a trial
court’s denial of a suppression motion is whether the factual
findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. When
reviewing the ruling of a suppression court, we must
consider only the evidence of the prosecution and so much
of the evidence of the defense as remains uncontradicted
when read in the context of the record. . . . Where the
record supports the findings of the suppression court, we
are bound by those facts and may reverse only if the legal
conclusions drawn therefrom are in error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (internal citations

omitted). “It is within the suppression court’s sole province as factfinder to

pass on the credibility of witnesses and the weight to be given their

testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa. Super.

2006).

The trial court explained the reasons it denied Appellant’s pre-trial

motion to suppress:

Appellant alleges that his statements were not knowing,
intelligent[,] and voluntary because he was in a debilitated
state caused by coercion and intoxication. Voluntariness is
determined from the totality of the circumstances
surrounding the statement. Schneckloth v. Bustamonte,
412 U.S. 218 (1973); Commonwealth v. Jones, 683 A.2d
1181 (Pa. 1996). The Commonwealth has the burden of
proving by a preponderance of the evidence that

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[Appellant’s] statement was voluntary. When assessing
voluntariness pursuant to the totality of the circumstances,
a court should look at the following factors: the duration
and means of the interrogation; the physical and
psychological state of the accused; the conditions attendant
to the detention; the attitude of the interrogator; and any
and all other factors that could drain a person’s ability to
withstand suggestion and coercion. Commonwealth v.
Edmiston, 634 A.2d 1078 (Pa. 1993).

Several officers testified that they saw no evidence of
intoxication on the part of Appellant. Officers observed no
slurred speech or difficulty in understanding or answering
questions. Appellant had been read his Miranda rights and
indicated that he understood them. In fact, several times
Appellant indicated he understood his rights. Appellant
remained awake and coherent throughout the interview.
Appellant [was not] subjected to an unduly lengthy or
difficult interrogation. Given the totality of the
circumstances, [the trial court] did not err in denying the
motion to suppress.

Trial Court Opinion, 3/9/11, at 7-8 (some internal citations omitted).

The record supports the trial court’s factual findings. Certainly, after

viewing “only the evidence of the prosecution and so much of the evidence

of the defense as remains uncontradicted,” the record demonstrates that at

no point “before or during [the custodial] interview” did Appellant:

“demonstrate to either [Detective Kinavey] or Detective Langan . . . that he

was under the influence of alcohol;” “manifest any type of sign that he was

impaired;” “tell [Detective Kinavey] that he was unable to understand what

was occurring in that interview room;” ask “for the opportunity to speak with

a lawyer;” or, “ask that the interview be interrupted or stopped.” N.T.

Suppression Hearing, 9/27/10, at 51-53; see also N.T. Jury Trial, 9/29/10,

at 260-262, 266, and 274. Further, the record supports the trial court’s

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J-S04018-15

factual determination that Appellant was not “subjected to an unduly lengthy

or difficult interrogation.” Trial Court Opinion, 3/9/11, at 8. Indeed, during

Appellant’s recorded statement – which constituted the final, relevant

interaction between Appellant and the detectives – Detective Kinavey asked

Appellant: “how do you feel that we have treated you this morning? Do you

feel that you’ve been treated good? Have you [] been given water, drinks or

whatever you need?” N.T. Jury Trial, 9/30/10, at 300. Appellant

responded: “Everything is cool man. You treat me good, you know what I

mean, even though you shouldn’t, because I’m a dumb ass.” Id.

Hence, “the factual findings [of the suppression court were] supported

by the record and [] the legal conclusions [the suppression court drew] from

those facts [were] correct.” Eichinger, 915 A.2d at 1134. As such, even if

Appellant had properly raised, on direct appeal, his claim that the

suppression court erred when it denied his suppression motion, this Court

would have denied the claim for relief; and, since counsel cannot be held

ineffective for failing to pursue a meritless claim, Appellant’s current

ineffective assistance of counsel claim fails. Commonwealth v.

Washington, 927 A.2d 586, 603 (Pa. 2007) (“[c]ounsel will not be deemed

ineffective for failing to raise a meritless claim”).9
____________________________________________

9
With respect to this claim, Appellant also alleges that “the trial court’s
decision to deny [Appellant’s] suppression motion was improperly based
upon her assessment of [Appellant’s] credibility relative to collateral
matters.” Appellant’s Brief at 34. This argument is devoid of merit, given
(Footnote Continued Next Page)

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J-S04018-15

Finally, Appellant raises a layered claim that his trial counsel was

ineffective “for failing to timely object to the presence of a testifying co[-

]defendant’s attorney on the stand with him during testimony.” Appellant’s

Brief at 4. This claim fails.

During Appellant’s case-in-chief, Appellant called his co-conspirator,

Calvin Loving, as a witness. At the time, Mr. Loving was represented by

Thomas Farrell, Esquire (hereinafter “Attorney Farrell”). Prior to Mr. Loving’s

testimony, Attorney Farrell declared to the trial court: “my client has [a]

Fifth Amendment right as to each and every question.” N.T. Jury Trial,

9/30/10, at 326. In view of this, Attorney Farrell requested that the trial

court allow him to “sit next to” Mr. Loving during questioning and be

available for Mr. Loving “to consult with [] on each and every question.” Id.

Appellant’s trial counsel did not object to this proposal and the trial court

initially allowed Attorney Farrell to sit next to Mr. Loving during examination

and to be available “to consult with” Mr. Loving. Id. at 326 and 420-424.

During Mr. Loving’s direct testimony, Mr. Loving testified that he

signed a particular affidavit and, within this affidavit, he stated:

I did it and [Appellant] didn’t have nothing to do with it. I
went to the crib/house by myself and went there [] to make
a sale to her and she tried to give me the runaround and
she said that her son had the money and he wasn’t there.
_______________________
(Footnote Continued)

that the trial court judge thoroughly explained the reasons she denied
Appellant’s suppression motion – and the trial court’s reasons were proper,
collectively sufficient, and supported by the record evidence.

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J-S04018-15

So, she went upstairs and brought a gun out of the room
and tried to rob me. So, I took my gun out to protect
myself and I hit her with the gun, so she could give up her
gun from her hand.

Then we went downstairs and she ran, so I thought she was
going to get something, so I had shot three times and ran
out of the house with the bag and two guns.

N.T. Jury Trial, 9/30/10, at 350-351.

Mr. Loving’s affidavit was read to the jury and the written document

admitted into evidence. Id.

However, during the Commonwealth’s cross-examination of Mr.

Loving, Mr. Loving testified that: while he was an inmate in the Allegheny

County Jail, “three males” gave him the affidavit; one or all of those three

males prepared the document; and, “before [he was] given this document,

[he] was assaulted” by the three males. Id. at 355. As Mr. Loving testified:

[t]hey kicked me, punched me, and brought blades out. I
thought I was going to die. They shaved my eyebrows. I
thought I was going to die there, so they told me to sign the
paper telling them that you did it and that’s what I did.

Id.

As Mr. Loving testified, every statement in the affidavit was false. Id.

at 357-359.

Mr. Loving also testified that the robbery and murder in this case

transpired in the following manner: Mr. Loving and Appellant went to the

victim’s home, intending to rob the victim’s son; while speaking with the

victim on her porch, Appellant pointed his gun at the victim; with the victim

at gunpoint, Mr. Loving, Appellant, and the victim entered the house; while

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Appellant held the victim at gunpoint, Mr. Loving moved through the house,

placing items in a hamper; after ordering the victim to lie face down,

Appellant went into the kitchen and began searching in the kitchen drawers;

“at some point, . . . [the victim] jump[ed] up and start[ed] to run;” Mr.

Loving heard “two or three shots coming from the kitchen area;” and,

Appellant and the victim were the only people who were in the kitchen area.

Id. at 364-380.

The record also reveals two instances where Attorney Farrell consulted

with Mr. Loving during Mr. Loving’s testimony. The first instance occurred

during the Commonwealth’s cross-examination of Mr. Loving; it transpired in

the following manner:

Q: Did you have toilet talk with other people that were
incarcerated who you knew to be associated with
[Appellant].

A: Yes, sir.

Q: And the extent of those conversations or the nature of
those conversations, did they refer to your making an
exculpatory statement on behalf of [Appellant]?

A: No, sir.

Q: Can you tell me what an exculpatory statement is,
please?

[Appellant’s Counsel]: That question has been asked and
answered.

[Trial Court]: And [Attorney] Farrell consulted with his client
to ask his client if he knew what the word exculpatory
meant, to which he responded, no. And [Attorney] Farrell

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J-S04018-15

directed him to ask the Commonwealth to explain that word
or use a different word. I will allow him to answer.

Q: [] the toilet talk with the other persons, tell the jury
about what was said in this manner between yourself and
the other people?

A: It was a friend that I knew, he said, what’s up? That’s all
he was saying. What’s up? How are you doing. And I’m in
there saying, what’s up? How you doing? And the next
minute I . . . got jumped.

Id. at 413-414.

The second instance where Attorney Farrell consulted with Mr. Loving

occurred during the Commonwealth’s re-cross examination of Mr. Loving.

The entirety of this occurrence – including Appellant’s objection, Attorney

Farrell’s sworn answers to the trial court, and the trial court’s ruling –

occurred as follows:

Q: . . . do you . . . have any expectation from the District
Attorney of Allegheny County, for your testifying today?

(Whereupon, the witness confers with his attorney.)

[Appellant’s Counsel]: May we approach?

[Trial Court]: You may.

(The following discussion was held at sidebar.)

[Appellant’s Counsel]: Your Honor, I object to the manner in
which this is occurring with [Attorney] Farrell giving him
input between every question. There is no other witness
that you can put on the stand that that happens with. He
has asserted he is waiving his Fifth Amendment privilege.
Once he waives that, he is like every other witness. I
cannot put my client on the stand and say, don’t answer
that.

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J-S04018-15

[Trial Court]: I’ll instruct [Attorney Farrell] that he can’t talk
to his client about anything except the question regarding
his Fifth Amendment rights. Up to this point I have
observed only two times [Attorney] Farrell has done that.
The first time, because he was afraid or aware that his
client didn’t understand the word and simply asked him that
question to which the client responded as [Attorney] Farrell
thought he would, that he didn’t understand the word.

At this time the client looked to him and [Attorney] Farrell
simply responded to the look, because of his obligation to
represent his client with regard to the Fifth Amendment
right. Once it became clear to him he wasn’t being asked
about asserting the Fifth Amendment right, he should have
just instructed his client to answer the question.

I’ll call him up here and ask him if that is in fact what he
did.

[Appellant’s Counsel]: My concern was the question whether
or not Calvin Loving is going to get any consideration. For
him not to answer that, [Attorney] Farrell answered in his
ear.

[Trial Court]: You can ask him on that point. But I’ll call
[Attorney] Farrell up right now and have him tell us what it
is he told him. [Attorney] Farrell is obviously a very
experienced defense trial lawyer. He would be under an
obligation to be truthful to us. I’ll ask him to put on the
record what it is he said to his client and I’ll also advise him
that other than questions from his client regarding his Fifth
Amendment right he should not tell his client what he is to
say other than be truthful.

[Attorney] Farrell, if you could approach at sidebar.

(Whereupon, [Attorney] Farrell comes to sidebar.)

[Trial Court]: [Appellant’s counsel] has raised an objection.
In this instance your client looked to you. You probably
responded, because you do have an obligation to advise him
on any questions he might have regarding his Fifth
Amendment right or other rights that may apply.

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J-S04018-15

[Attorney Farrell]: That is correct.

[Trial Court]: Beyond that, however, she would not want
you coaching him as to what to say in that regard. I don’t
know what you said to him. I couldn’t hear that, but I
would assume that you would know what limits there would
be and you would advise him to testify truthfully.

[Attorney Farrell]: I’ve always advised my client to testify
truthfully. My client, as you have seen already, is not the
smartest guy in the world. He doesn’t even understand
what exculpatory means. So there are things when he
looks to me, he looks to me for advice. And it is too bad
that [Appellant’s] counsel has a problem with that, but she
probably shouldn’t have called my client in the first place.
I’m not coaching him what to say. However, I’m advising
him, and he has a right to counsel, and that’s what I’m here
for. It is kind of ironic that she would call my client and
then complain about this. If [the Commonwealth] had
complained, I could understand it. But it is kind of funny
that she actually calls my client and now she is complaining
about it. I will not coach my client.

[Trial Court]: Thank you.

Id. at 420-424.

Other than these two rather innocuous instances,10 the record does

not reveal any other time where Attorney Farrell consulted with Mr. Loving

during Mr. Loving’s testimony.

____________________________________________

10
Later during the Commonwealth’s re-cross examination of Mr. Loving, Mr.
Loving testified:

Q: Are you aware that you have a trial scheduled for
December of 2010, the jury trial scheduled, correct?

A: Yes, sir.

(Footnote Continued Next Page)

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J-S04018-15

As stated above, within Appellant’s second PCRA petition, Appellant

raised a layered ineffective assistance of counsel claim, contending that trial

counsel was ineffective for failing “to object to the presence of Calvin

Loving’s counsel with him on the stand.” Appellant’s Amended Second PCRA

Petition, 2/21/14, at ¶ 65. Within this petition, Appellant noted the two,

above-summarized instances where Attorney Farrell consulted with Mr.

Loving during Mr. Loving’s testimony. See id. at ¶ 65(c). Appellant did not

plead that there were any other instances where Attorney Farrell consulted

_______________________
(Footnote Continued)

Q: And are you aware that you are facing the charge of
[c]riminal [h]omicide?

A: Yes, sir.

Q: And also a charge of [r]obbery?

A: Yes, sir.

...

Q: At any time have you expected the Commonwealth or
myself as an Assistant District Attorney to enter into a plea
agreement in your prosecution?

A: No, sir.

Q: [Have] any promises been made to you at any time that
I would or the Commonwealth or the District Attorney’s
[O]ffice of Allegheny County would entertain a plea
agreement offer?

A: No, sir.

N.T. Jury Trial, 9/30/10, at 426.

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J-S04018-15

with Mr. Loving. See id. at ¶ 65(a)-(l). Nevertheless, according to

Appellant, in failing “to object to the presence of Calvin Loving’s counsel with

him on the stand,” Appellant’s trial counsel allowed “Mr. Loving’s responses

to the questions that he was asked [to] not [be] based on his own

independent knowledge and recollection of events, but rather upon the

assistance that was provided by [Attorney] Farrell.” Id. at ¶ 65.

As noted, the PCRA court dismissed this claim without holding a

hearing. Now on appeal, Appellant claims that he was entitled to an

evidentiary hearing on his claim because “[i]t is impossible to know the

scope and nature of the assistance [Attorney] Farrell provided and to what

extent, if any, his assistance had upon the testimony of Mr. Loving.”

Appellant’s Brief at 32.

Appellant’s argument is not persuasive. To be sure, during trial, the

trial court questioned Attorney Farrell on “the scope and nature of the

assistance [Attorney] Farrell provided” to Mr. Loving and the trial court

made a finding that Attorney Farrell did not improperly suggest answers to

Mr. Loving. N.T. Jury Trial, 9/30/10, at 420-424. Certainly, during sidebar,

the trial court informed counsel that there were only two instances where

she observed Attorney Farrell consult with Mr. Loving: once “to ask [Mr.

Loving] if he knew what the word exculpatory meant, to which [Mr. Loving]

responded, no[; a]nd [Attorney] Farrell directed [Mr. Loving] to ask the

Commonwealth to explain that word or use a different word;” and, once

where the Commonwealth asked Mr. Loving whether he had “any

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expectation from the District Attorney of Allegheny County, for [his]

testifying today.” Id. at 413-414 and 420-424. With respect to the latter

instance, Attorney Farrell expressly told the trial court that his consultation

with his client was “not [to] coach[] him what to say”11 – and the trial court

believed Attorney Farrell. Id. at 420-424.

Therefore, Appellant is incorrect to claim that, without an evidentiary

hearing, “[i]t is impossible to know the scope and nature of the assistance

[Attorney] Farrell provided and to what extent, if any, his assistance had

upon the testimony of Mr. Loving.” See Appellant’s Amended Second PCRA

Petition, 2/21/14, at ¶ 65; Appellant’s Brief at 32. Rather, in this case, the

able trial court judge held a sidebar, where she questioned Attorney Farrell,

and then determined that there were only two instances of consultation

between Attorney Farrell and Mr. Loving. N.T. Jury Trial, 9/30/10, at 420-

424. Moreover, after questioning Attorney Farrell, it was revealed that “the

scope and nature” of the consultations were innocuous – and that it did not

taint or alter Mr. Loving’s “independent knowledge and recollection of

events.” Id.; see also Appellant’s Amended Second PCRA Petition,

2/21/14, at ¶ 65.

____________________________________________

11
As an officer of the court, Attorney Farrell had an ethical obligation to “not
knowingly . . . make a false statement of material fact or law to a tribunal.”
Pa.R.P.C. 3.3(1).

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J-S04018-15

Hence, even if the trial court erred when it allowed Attorney Farrell to

sit next to and consult with Mr. Loving, the error did not cause Appellant

prejudice. Fulton, 830 A.2d at 572 (to establish prejudice under the PCRA,

Appellant must plead and prove that, “but for counsel’s ineffectiveness,

there is a reasonable probability that the outcome of the challenged

proceedings would have been different”). Moreover, within Appellant’s PCRA

petition, Appellant did not plead that any other, unrecorded instance of

consultation occurred between Attorney Farrell and Mr. Loving during Mr.

Loving’s testimony. Therefore, Appellant was not entitled to an evidentiary

hearing on his ineffective assistance of counsel claim. Pa.R.Crim.P. 907(1)

(declaring that the PCRA court may dismiss a PCRA petition without holding

a hearing if “the judge is satisfied from this review that there are no genuine

issues concerning any material fact and that the defendant is not entitled to

post-conviction collateral relief, and no purpose would be served by any

further proceedings”); see also Commonwealth v. Wallace, 724 A.2d

916, 921 n.5 (Pa. 1999) (holding that a failure to raise a claim “in the PCRA

petitions presented to the PCRA court” waives the claim for purposes of

appellate review); Commonwealth v. Rainey, 928 A.2d 215, 226 (Pa.

2007) (same); see also 42 Pa.C.S.A. § 9543(a) (“[t]o be eligible for relief

under [the PCRA], the petitioner must plead and prove by a preponderance

of the evidence all of the following. . .”); Pa.R.Crim.P. 902 (“Content of

Petition for Post-Conviction Collateral Relief”).

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J-S04018-15

The PCRA court thus did not err when it dismissed Appellant’s second

PCRA petition without holding a hearing.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/22/2016

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