Com. v. Bennett, M.

J-S41038-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

MALIK BENNETT,

Appellant No. 1418 EDA 2015

Appeal from the PCRA Order May 14, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0314291-2003

BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 11, 2016

Malik Bennett (“Appellant”) appeals from the order entered in the

Court of Common Pleas of Philadelphia County denying him relief on his first

petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S § 9541 et

seq. He raises several issues alleging ineffective assistance of counsel and

the denial of due process of law. We affirm.

The PCRA court aptly summarizes the procedural and factual history of

the case as follows:

On June 1, 2009, following a jury trial [] before this Court [Court
of Common Pleas], [Appellant] was found guilty of first degree
murder [], carrying a firearm on a public street [], and
possessing an instrument of crime (PIC).[] That same day,
[Appellant] was sentenced to the mandatory term of life in
prison.[]

On June 9, 2009, [Appellant] filed post-sentence motions, which
were denied by [the Court of Common Pleas] on October 6,
2009. [Appellant] filed a timely notice of appeal.[] The Superior

*Former Justice specially assigned to the Superior Court.
J-S41038-16

Court affirmed [Appellant’s] judgment of sentence on April 13,
2011.[] On June 6, 2011, [Appellant] filed an “Application for
Leave to File a Petition for Permission to Appeal out of Time,”
and on January 3, 2012, our Supreme Court denied application
for permission to file petition for allowance of appeal nunc pro
tunc.[] The Supreme Court’s order specifically stated that the
application was denied “without prejudice to petitioner to file a
Post Conviction Relief Act petition in the Court of Common Pleas
of Philadelphia County requesting reinstatement of his allocator
rights nunc pro tunc.”

On May 1, 2012, [Appellant] filed a timely PCRA petition.[]
[Appellant] raised multiple issues in his first PCRA petition, one
of which was appellate counsel’s ineffectiveness for failing to file
a requested petition for allowance of appeal. Following an
evidentiary hearing on January 11, 2013, [the Court of Common
Pleas] reinstated [Appellant’s] right to petition for allowance of
appeal nunc pro tunc, and denied the other claims raised by
[Appellant]. Subsequently, [the Court of Common Pleas]
acknowledged that the other claims should instead have been
dismissed without prejudice, and the Superior Court agreed.[]
Thereafter, our Supreme Court received [Appellant’s] petition for
allowance of appeal and denied it.[]

On June 16, 2014, [Appellant] filed an amended PCRA petition,
re-raising the other original claims that were raised in his earlier
PCRA petition and adding two new claims.[] The Commonwealth
filed a motion to dismiss on November 13, 2014, and [Appellant]
filed a response to the Commonwealth’s motion to dismiss on
January 28, 2015. Having reviewed the pleadings and
conducted an independent review, [the PCRA court] determined
that an evidentiary hearing pursuant to Pa.R.Crim.P. 908 was
warranted on only one of [Appellant’s] claims.[] Following the
evidentiary hearing on May 14, 2015, [the PCRA court]
dismissed [Appellant’s] claim in open court, and dismissed the
remainder of [Appellant’s] claims in a written Order that same
day.[] This timely appeal followed.

On February 9, 2003, [Appellant] and Ramone Randolph
(Randolph) attended a birthday party at Neil’s R & R Hideaway
(Bar) at 33rd and Reed Streets in South Philadelphia. The party
ended in the early morning hours, and, like the other attendees,
[Appellant] and Randolph left the Bar and lingered outside. At
approximately 2:20 a.m., as Randolph was sitting in the driver’s

-2-
J-S41038-16

seat of his car, [Appellant] approached the car and shot six
times through the closed driver’s side window. Four of the shots
hit Randolph, who later died at the Hospital of the University of
Pennsylvania.

There was a large number of people who were either standing
outside the Bar or sitting in their cars near the Bar when the
shooting occurred. Ronnetta Williams was standing in the
middle of the street when she heard the gunshots and looked
up. She saw [Appellant] running away from the car with a gun
in his hand. She then approached the car and saw that
Randolph had been shot. Another partygoer, Teahonda
Wilkerson, was also standing outside the Bar when the shooting
occurred. She heard the shots, looked up, and saw [Appellant]
run away from Randolph’s car and run through Stinger Park
(Park), which was across the street from the Bar. Tanisha
Woods had also attended the party and was sitting in a car
outside the Bar with her sister-in-law and heard the shots.
Moments after the shooting, she got a call on her cell phone that
her brother, Anthony Woods, was chasing [Appellant] as he fled
the scene of the shooting. Ms. Woods ran up the block and saw
her brother in pursuit of [Appellant]. Ms. Woods saw a gun in
[Appellant’s] hand and was afraid that [Appellant] would shoot
her brother, so she yelled to him to stop pursuing [Appellant],
and he complied.[]

[Appellant] was also seen running down the street by two
witnesses who had not attended the party. Raymond White[,
Randolph’s cousin], was standing outside of his mother’s house
near the Bar and across the street from the Park; he heard the
shots coming from the direction of the Bar and saw a male
wearing a red, white, and blue jacket and wearing a hat running
through the Park immediately afterwards. The victim’s nephew,
Khayree Gay, was also walking near the Bar and saw a man
wearing a baseball cap and jacket running through the Park.

Ballistics evidence showed that six shots were fired, all of which
were fired from the same gun. Four of these bullets hit
Randolph; two shots hit Randolph’s upper back, and two hit his
left arm. The gun was never recovered.

PCRA Court Opinion, filed Sept. 22, 2015, at 1-4.

Appellant raises the following issues for our review:

-3-
J-S41038-16

I. [DID] THE PCRA COURT DEN[Y] DUE PROCESS OF
LAW GUARANTEED BY THE STATE AND FEDERAL
CONSTITUTIONS WHEN IT DENIED THE PCRA
PETITION WITHOUT REVIEWING THE TRIAL
TRANSCRIPTS[?]

II. [DID] THE PCRA COURT DEN[Y] DUE PROCESS AND
ERR[] WHEN IT DENIED THE [INEFFECTIVE
ASSISTANCE OF COUNSEL] CLAIMS WITHOUT
CONSIDERING THE TOTALITY OF FACTS AND
CIRCUMSTANCES[?]

III. [DID] THE PCRA COURT DEN[Y] DUE PROCESS AND
ERR[] WHEN IT FAILED TO CONSIDER THE
[INEFFECTIVE ASSISTANCE OF COUNSEL] CLAIM
FOR FAILURE TO INTERVIEW ANTHONY WOODS
DISTINCT FROM THE FAILURE TO CALL ANTHONY
WOODS AS A DEFENSE WITNESS[?]

IV. [DID] THE PCRA COURT DEN[Y] DUE PROCESS AND
ERR[] WHEN IT DENIED THE [INEFFECTIVE
ASSISTANCE OF COUNSEL] CLAIMS WITHOUT
CONSIDERING THEM HOLISTICALLY AS OPPOSED TO
ITEM-BY-ITEM[?]

Appellant’s brief at 2-3.

Our standard and scope of review for the denial of a PCRA petition is

well-settled:

Our standard of review of the denial of a PCRA petition is limited
to examining whether the evidence of record supports the
court's determination and whether its decision is free of legal
error. Commonwealth v. Conway, 14 A.3d 101 (Pa.Super.
2011), appeal denied, 612 Pa. 687, 29 A.3d 795 (2011). This
Court grants great deference to the findings of the PCRA court if
the record contains any support for those findings.
Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007),
appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). “[A]
petitioner is not entitled to a PCRA hearing as a matter of right;
the PCRA court can decline to hold a hearing if there is no
genuine issue concerning any material fact and the petitioner is

-4-
J-S41038-16

not entitled to post-conviction collateral relief, and no purpose
would be served by any further proceedings.” Commonwealth
v. Taylor, 933 A.2d 1035, 1040 (Pa.Super. 2007), appeal
denied, 597 Pa. 715, 951 A.2d 1163 (2008); Pa.R.Crim.P.
907(1). “A reviewing court on appeal must examine each of the
issues raised in the PCRA petition in light of the record in order
to determine whether the PCRA court erred in concluding that
there were no genuine issues of material fact and in denying
relief without an evidentiary hearing.” Commonwealth v.
Derrickson, 923 A.2d 466, 468 (Pa.Super. 2007), appeal
denied, 594 Pa. 685, 934 A.2d 72 (2007).

Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa.Super. 2015).

Further, a PCRA petitioner will be granted relief only when he proves,

by a preponderance of the evidence, that his conviction or sentence resulted

from the “[i]neffective assistance 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). As we have recognized:

It is well-established that counsel is presumed to have provided
effective representation unless the PCRA petitioner pleads and
proves all of the following: (1) the underlying legal claim is of
arguable merit; (2) counsel's action or inaction lacked any
objectively reasonable basis designed to effectuate his client's
interest; and (3) prejudice, to the effect that there was a
reasonable probability of a different outcome if not for counsel's
error.

The PCRA court may deny an ineffectiveness claim if the
petitioner's evidence fails to meet a single one of these prongs.
Moreover, a PCRA petitioner bears the burden of demonstrating
counsel's ineffectiveness.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa.Super. 2010) (case

citations omitted) (quoting Commonwealth v. Natividad, 595 Pa. 188,

207, 938 A.2d 310, 321 (2007)) (citations omitted).

-5-
J-S41038-16

Appellant first charges the PCRA court with having denied him due

process of law by allegedly failing to refer to transcripts of his criminal trial

prior to denying his PCRA petition. Specifically, Appellant states that support

for this claim lies in the docket sheet, which shows trial transcripts were

transmitted well after the certified record was. This indicates, he says, that

the transcripts were in storage and, thus, not available to the PCRA court at

the time it conducted its review of Appellant’s collateral appeal.

The PCRA court denies this allegation with the assertion in its Pa.R.A.P.

1925(a) opinion that it conducted an independent review of the entire trial

record. It notes, further, that Appellant voiced no concerns during PCRA

proceedings that the record was incomplete in any way, and it denounces

this claim as nothing more than an undeveloped allegation unsupported by

the record and unpreserved with a timely objection while the PCRA court

retained jurisdiction over the matter. For its part, the Commonwealth notes

that “[t]he Court of Common Pleas’ website indicates that the notes of

testimony from defendant’s trial were uploaded on November 13, 2009, and

October 8, 2009, respectively.” Appellee’s brief at 8.

Our review of the record substantiates the PCRA court’s response, as

both its Order and Opinion of May 14, 2015, dismissing all but one of

Appellant’s PCRA claims and its Pa.R.A.P. 1925(a) Opinion of September 22,

2015, are replete with references and accurate pinpoint citations to notes of

testimony from Appellant’s trial. We, therefore, reject Appellant’s vaguely

-6-
J-S41038-16

presented, facial attack on the PCRA court’s review of his petition as

unsupported by the record.

Appellant’s next claim, related to his first, alludes to allegedly critical

trial evidence that he claims the PCRA court either misconstrued or

altogether ignored to his prejudice. Appellant predicates this argument on

an assertion that the PCRA court committed legal error by analyzing his

ineffective assistance of counsel claims in a light most favorable to the

Commonwealth as verdict winner. Evidence of this error, Appellant

maintains, is seen where the PCRA court concludes that “five eyewitnesses

testified that they heard gunshots and saw [Appellant], wearing a red,

white, and blue jacket, run from the victim’s car or run through the park

immediately after the shots were fired[.]” Order Dismissing PCRA Claims,

filed May 14, 2015 at 5. In fact, Appellant posits, the witnesses did not

testify uniformly to this effect, but, instead, provided somewhat varying

accounts of a young man wearing a red, white, and blue jacket—similar to

the jacket worn by Appellant that night--running away from the scene and

through a nearby park, with only Ronnetta Williams and Tanisha Woods

identifying the man as Appellant. Such inconsistencies, Appellant maintains,

undermined proof of identity at trial.

Initially, we agree with the Commonwealth’s reply that Appellant has

waived this issue by failing to raise it in his Pa.R.A.P. 1925(b) statement.

Apparently, Appellant intends this claim to provide the substance and detail

to his first claim, which was raised in his Rule 1925(b) statement but in such

-7-
J-S41038-16

a vague and nonspecific fashion that it left the PCRA court unable to surmise

what portion of the trial record it had allegedly overlooked or misconstrued.

We observe that, generally,

issues not raised in a Rule 1925(b) statement will be deemed
waived for review. An appellant's concise statement must
properly specify the error to be addressed on appeal. In other
words, the Rule 1925(b) statement must be “specific enough for
the trial court to identify and address the issue [an appellant]
wishe[s] to raise on appeal.” Commonwealth v. Reeves, 907
A.2d 1, 2 (Pa.Super. 2006), appeal denied, 591 Pa. 712, 919
A.2d 956 (2007). “[A][c]oncise [s]tatement which is too vague
to allow the court to identify the issues raised on appeal is the
functional equivalent of no [c]oncise [s]tatement at all.” Id.
The court's review and legal analysis can be fatally impaired
when the court has to guess at the issues raised. Thus, if a
concise statement is too vague, the court may find waiver.

Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa.Super. 2011) (some

internal citations omitted).

Moreover, even if we were to review the claim, we would find it

without merit. Initially, Appellant misapprehends our standard and scope of

review in a collateral appeal, for this Court analyzes PCRA appeals “in the

light most favorable to the prevailing party at the PCRA level.”

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.Super. 2012); see

also Spotz, 84 A.3d 294, 311 (Pa. 2014) (“The scope of review is limited to

the findings of the PCRA court and the evidence of record, viewed in the light

most favorable to the prevailing party at the trial level.”).

Put another way, this Court reviews appeals from the denial of
collateral relief under the actual prejudice standard, not the less
stringent harmless error standard. See Spotz, supra at 315,
320. Therefore, this Court's review of the PCRA court's order

-8-
J-S41038-16

need not and does not accept Appellant's “version of the facts.”
[] (emphasis omitted).

Commonwealth v. Charleston, 94 A.3d 1012, 1025-26 (Pa.Super. 2014)

(citation omitted). Viewed in a light most favorable to the Commonwealth

as verdict winner, eyewitness testimony at trial clearly implicated Appellant

as the man who shot the victim and fled. Accordingly, Appellant cannot

prevail on his claim that the PCRA court prejudicially mischaracterized the

trial record.

In his third issue, Appellant argues that trial counsel rendered

ineffective assistance of counsel for failing to conduct a pre-trial interview of

Anthony Woods, who was at the Bar on the night of the shooting. According

to Appellant, Mr. Woods would have proved a valuable witness because he

denied ever having seen Appellant shoot Randolph or chasing Appellant

through the nearby park immediately after the shooting as the prosecution

said he did through statements given by Woods’ sister and other

eyewitnesses.1 This testimony would have been critical, Appellant
____________________________________________

1
Appellant contends that the PCRA court erroneously credited Tanisha
Woods with testifying that she saw her brother chasing Appellant after the
shooting, when, in fact, this story was “something concocted by the
detectives and inserted into a statement.” Appellant’s brief at 29. At trial,
Tanisha Woods testified as follows:

Q: After you heard the gunshots where did you go?
A [by Tanisha Woods]:[She got a phone call and walked one
block up from the shooting].
Q: At some point when you were around that area, did you
see your brother?
A: Uh-huh.
(Footnote Continued Next Page)

-9-
J-S41038-16

maintains, because the jury specifically asked the court during its

deliberations why the man who chased the shooter was not brought in to

testify. N.T. 6/1/09 at 133. At the PCRA hearing, Mr. Woods testified that

he was inside the Bar when he heard gunshots and stayed with Randolph

until emergency response arrived.

_______________________
(Footnote Continued)

Q: What was he doing?
A: Running across the park.
Q: Was he chasing someone?
A: Yeah.
Q: Who was he chasing?
A: Malik.
Q: Do you see Malik in court today?
A: Yes.
Q: Can you point him out?
A: [Indicating, by point of finger, the defendant]
Q: What did you do when you saw your brother chasing
Malik?
A: I called my brother back.
Q: Why did you call your brother back?

***
A: I didn’t want my brother to get hurt.
Q: Did your brother listen to you and did he stop chasing?
A: Yes.

N.T. 5/28/09 at 166-67. Friend and neighbor Ronnetta Williams also
identified Anthony Woods as the man chasing Appellant after the shooting.
N.T. at 76-77. At the PCRA hearing, Tanisha Woods confirmed she called
her brother back while he was chasing the shooting suspect, although she
now said she could not have identified Appellant as the man whom her
brother was chasing. N.T. 5/14/15 at 61-66. The PCRA court, however,
deemed incredible Tanisha Woods’ recanting of the identification she made
of Appellant at both the investigation scene and at trial.

- 10 -
J-S41038-16

When raising a claim of ineffectiveness for the failure to
call a potential witness, a petitioner satisfies the performance
and prejudice requirements of the [ineffectiveness] test by
establishing that: (1) the witness existed; (2) the witness was
available to testify for the defense; (3) counsel knew of, or
should have known of, the existence of the witness; (4) the
witness was willing to testify for the defense; and (5) the
absence of the testimony of the witness was so prejudicial as to
have denied the defendant a fair trial. To demonstrate [ ]
prejudice, a petitioner must show how the uncalled witnesses'
testimony would have been beneficial under the circumstances of
the case. Thus, counsel will not be found ineffective for failing to
call a witness unless the petitioner can show that the witness's
testimony would have been helpful to the defense. A failure to
call a witness is not per se ineffective assistance of counsel[,] for
such decision usually involves matters of trial strategy.

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

and quotation marks omitted).

At the PCRA hearing, Anthony Woods was adamant that he knew

nothing about the shooting other than seeing Randolph covered in blood in

the aftermath. He denied seeing the shooting, knowing who committed it,

and chasing the suspect on the night it happened. He testified that he made

no attempt to learn anything about who shot his good friend in the many

years that passed between the shooting and the day of his PCRA testimony.

He testified that he would have appeared as a trial witness if he had been

subpoenaed, but the sum and substance of his testimony would have been

that he knew nothing.

Appellant has not sufficiently demonstrated that this testimony could

have substantially aided his defense such that counsel’s failure to interview

Woods prejudiced him at trial. Woods’ testimony did not exculpate

- 11 -
J-S41038-16

Appellant; it simply removed himself from every aspect of the shooting of

Ramone Randolph. By repeatedly disclaiming any knowledge of who

committed the shooting or who may have pursued the shooter immediately

afterward, Woods established only that a pre-trial interview of him would

have been fruitless, as his statement had little to no probative value.

Indeed, Appellant fails to demonstrate how Anthony Woods’ almost reflexive

denial of knowledge, as exhibited at the PCRA hearing, would have

impeached the credibility of the many eyewitness accounts naming Appellant

as the man wearing the blue, red, and white jacket who ran from the scene

carrying a gun. This claim, therefore, lacks merit.

In Appellant’s fourth and final enumerated question presented, he

raises seven additional allegations of trial counsel’s ineffective assistance

both individually and collectively. They include: (1) a reiteration of counsel’s

failure to conduct an investigation including the failure to interview Anthony

Woods; (2) counsel’s failure to play a recording of the “9-1-1” call in which

the caller suggests there is more than one shooter when she says “they’re

outside shooting. The bar just let out, and they’re ju. . .it’s like the OK

corral out there.”; (3) counsel’s failure to lodge a hearsay objection to the

introduction of the autopsy report; (4) counsel’s failure to object to the

Commonwealth’s calling a witness to provide prior inconsistent statements of

some eyewitnesses who proved reluctant to testify—presumptively one of

the detectives, though the brief fails to identify the witness or where in the

notes of testimony his objectionable testimony appears; (5) counsel’s failure

- 12 -
J-S41038-16

to object to a conviction based solely on unsworn testimony; (6) counsel’s

failure to object to the trial court’s instruction (not provided in the brief),

which “merge[d] premeditation and deliberation into one synonymous

lump”; (7) a second reiteration of counsel’s ineffective failure to interview

Anthony Woods; and (8) a claim that all the above instances of alleged

ineffective assistance, when considered collectively, would have prejudiced

Appellant.

In its Rule 1925(a) opinion, the PCRA court addresses each individual

claim of ineffective assistance of counsel and rejects it on first or second

prong grounds, save for the autopsy-based claim, which the court

determined could not have prejudiced Appellant. See PCRA Court Opinion at

9-22. After careful review of the record, we concur with the PCRA court’s

cogent and comprehensive expression of rationale in dismissing these claims

and, accordingly, we adopt its opinion in this regard.2
____________________________________________

2
With respect to Appellant’s claim of cumulative prejudice, we note that the
jurisprudence of this Commonwealth has recognized:

We have often held that no number of failed claims may
collectively warrant relief if they fail to do so individually.
However, we have clarified that this principle applies to claims
that fail because of lack of merit or arguable merit. When the
failure of individual claims is grounded in lack of prejudice, then
the cumulative prejudice from those individual claims may
properly be assessed.

Commonwealth v. Spotz, 18 A.3d 244, 320–321 (Pa. 2011) (citations and
quotation marks omitted). Significantly, however, there is no prejudice to
aggregate in the present case, for the PCRA court resolved only one issue
(Footnote Continued Next Page)

- 13 -
J-S41038-16

Order is Affirmed.
Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/11/2016

_______________________
(Footnote Continued)

with resort to the prejudice prong and concluded there was no prejudice at
all—a disposition with which we agree.

- 14 -
 Circulated 06/24/2016 02:11 PM

PHILADELPHIA COURT OF COMMON PLEAS
CRIMINAL TRIAL DMSIQN

COMMONWEAL TH
CP-51-CR-0314291-2003
1418 EDA 2015
v.

MALIK BENNETT l=ILED
Sarmina,J. SEP 2 2 2015
September 22, 2015 . Criminal A ~ .
FirstJudfcia,PoPea[::i
Untt
..
istnctot PA
\ OPINION
Ii
i PROCEDURAL HISTORY
l

On June 1, 2009, following a jury trial' before this Court, Malik Bennett (hereafter,

petitioner) was found guilty of first degree murder (H-1), carrying a firearm on public streets (M~1),

2
and possessing instruments of crime (PIC)(M-1). That same day, petitioner was sentenced to the

mandatory term3 of life in p.rison.4 Notes of Testimony (N.T.) 6/1/09 at 144-45.

On June 9, 2009, petitioner filed post-sentence motions, which were denied by this Court on

October 6, 2009. Petitioner filed a timely notice of appeal.5 The Superior Court affirmed

petitioner's judgment of sentence on April 13, 2011.6 On June 6, 2011, petitioner filed an

1 At trial, petitioner was represented by William Spade, Esquire.

2 18 Pa.C.S. §§ 2502(a), 6108, and 907(a), respectively.

3 18 Pa.C.S. 1102(a).

4As to the charge of carrying a firearm on public streets, petitioner was sentenced to a concurrent term of not less than
one nor more than five years imprisonment. As to the charge of PIC, petitioner was sentenced to a concurrent term of
not less than one nor more than five years imprisonment. N.T. 6/1/09 at 144-45.
i
.1
. s On direct appeal, petitioner was represented by Alan Tauber, Esquire, who was retained by petitioner's family .

6 Commonwealth v. Bennect, No. 3202 EDA 2009, slip op. (Pa.Super., April 13, 2011) (memorandum opinion).'
 "Application for Leave to File a Petition for Permission to Appeal out of Time," and on January 3,

2012, our Supreme Court denied application for permission to file petition for allowance of appeal

nunc pro tunc.7 The Supreme Court's order specifically stated that the application was denied "without

prejudice to petitioner to file a Post Conviction Relief Act petition in the Court of Common Pleas of

Philadelphia County requesting reinstatement of his allocatur rights nunc pro tune."

On May 1, 2012, petitioner filed a timely PCRA petition.8 Petitioner raised multipleissues in

his first PCRA petition, one of which was appellate counsel's ineffectiveness for failing to file a

requested petition for allowance of appeal. Following an evidenti.ary hearing on January 11, 2013,

this Court reinstated petitioner's right to petition for allowance of appeal nuncpro tune, and denied

the other claims raised by petitioner. Subsequently, this Court acknowledged that the other claims

should instead have been dismissed without prejudice, and the Superior Court agreed.9 Thereafter,

our Supreme Court received petitioner's petition for allowance of appeal and denied it.10

On June 16, 2014, petitioner filed an amended PCRA petition, re-raising the other original

claims that were raised in his earlier PCRA petition and adding two new claims." The

Commonwealth filed a motion to dismiss on November 13, 2014, and petitioner filed a response to

the Commonwealth's motion to dismiss on January 28, 2015. Having reviewed the pleadings and

conducted an independent review, this Court determined that an evidentiary hearing pursuant to

7
Commonwealth v. Bennett, No. 89 EM 2011, slip op. (Pa. Jan. 3, 2012).
& Cheryl Sturm, Esquire, represents petitioner on collateral attack.

9 On November 19, 2013, the Superior Court affirmed th.is Court's mling as to ineffectiveness of counsel for failing to
pursue ol~rot11r and vacated this Court's decision on the other claims, which were to be pursued after the resolution of
the alloratur petition.

10
Commonwealth v. Malik Bennett, No. 101 EAL 2013, slip op. Qune 27, 2013).

11 Petitioner also filed a motion for recusal on July 15, 2014, alleging that this Court had "pre-judged" the issues. The

'
I
·l
motion was denied by this Court on September 9, 2014.

2
/
l~
 Pa.R.Crim.P. 908 was warranted on only one of petitioner's claims.12 Following the evidentiary

hearingon May 14, 2015, this Court dismissed petitioner's claim in open court, and dismissed the

remainder of petitioner's claims in a written Order that same day.13 This timely appeal followed.

FACTS

On February 9, 2003, petitioner and Ramone Randolph (Randolph) attended a birthday

party at Neil's R & R Hideaway (Bar) at 33'd and Reed Streets in South Philadelphia. N.T. 5/28/09

at 162-63. The party ended in the early morning hours, and, like the other attendees, petitioner and

Randolph left the Bar and lingered outside. Id. At approximately 2:20 a.m., as Randolph was sitting

in the driver's seat of his car, petitioner approached the car and shot six times th.rough the closed

driver's side window. Ml at 69, 153. Four of the shots hit Randolph, who later died at the Hospital

of the University of Pennsylvania. N.T. 5/29/09 at32-33.

There was a large number of people who were either standing outside the Bar or sitting in

their cars near the Bar when the shooting occurred. Ronnetta Williams was standing in the middle

of the street when she heard the gunshots and looked up. N.T. 5/28/09 at 73-74. She saw

petitioner running away from the car with a gun in his hand. Id,. at 74. She then approached the car

and saw that Randolph had been shot. Id. at 77-78. Another partygoer, Teahonda Wilkerson, was

also standing outside the Bar when the shooting occurred. N.T. 5/29/09 at 46-48. She heard the

shots, looked up, and saw petitioner run away from Randolph's car and run through Stinger Park

(Park), which was across the street from the Bar. Ml at 48-49. Tanisha Woods had also attended

the party and was sitting in a car outside the Bar with her sister-in-la~ and heard the shots. N.T.

12
On May 14, 2015, this Court held an evidentiary hearing with respect to petitioner's claim that trial counsel was
ineffective for failing to call as a witness Anthony Woods, also known as "Tez,"

13
At the conclusion of the evidentiary hearing, this Court informed petitioner that his remaining claims were dismissed,
and handed petitioner and counsel a copy of the dismissal Order, which explained th.is Court's reasons for dismissal.
N.T. 5/14/15 at 85.

3
 5/28/09 at 162-64. Moments after the shooting, she got a call on her cell phone that her brother,

Anthony Wo_ods, was chasing petitioner as he fled the scene of the shooting. Id. at 165. Ms. Woods

ran up the block and saw her brother in pursuit of petitioner. Id. Ms. Woods saw a gun in

petitioner's hand and was afraid that petitioner would shoot her brother, so she yelled to him to stop

pursuing petitioner, and he complied. Id. at 166, 171; 176.14

Petitioner was also seen running down the street by two witnesses who had not attended the

party. N.T. 5/28/09 at 115; N.T. 5/29/09 at 136. Raymond White15 was standing outside of his

mother's house near the Bar and across the street from the Park; he heard the shots coming from

the direction of the Bar and saw a male wearing a red, white, and blue jacket and wearing a hat

running through the Park immediately afterwards. N.T. 5/28/09 at 115, 123. The victim's nephew,

Khayree Gay, was also walking near the Bar and saw a man wearing a baseball cap and jacket

running through the Park. N.T. 5/29/09 at 136-37.

Ballistics evidence showed that six shots were fired, all of which were fired from the same

gun. N.T. 5/28/09 at 195, 200. Four of these bullets hit Randolph; two shots hit Randolph's upper

back, and two hit his left arm. Id. at 152. The gun was never recovered. l!i at 195.

LEGAL ANALYSIS

Petitioner has raised ten issues on appeal.16

1. This Court denied due process oflaw guaranteed by the state and federal constitutions when
it denied the PCRA petition without a review of the entire record.

2. This Court abused its discretion when it denied the motion for recusal.

u Ms. Woods' testimony was largely consistent w.ith a statement she had given during her police interview after the
shooting. The only major discrepancy in her testimony at trial was that, during her police interview, she stated that she
saw the gun in petitioner's hand while her brother was chasing him, and in her trial testimony she denied that she bad
seen the gun. N.T. 5/28/09 at 170- 72.

IS~- White happened to be Randolph's cousin.

16 This Court has rephrased petitioner's claims for ease of disposition.

4
 3. This Court erred when it ruled that Mr. Woods was not a credible witness.

4. This Court erred by dismissing petitioner's claim that trial counsel was ineffective for failing
to play the 9-1-1 tape.

5. This Court erred by dismissing petitioner's claim that trial counsel was ineffective for failing
to object to the ad.mission of the autopsy report on the grounds that it was testimonial
'I
·I hearsay in violation of the Confrontation Clause.

l 6. This Court erred by dismissing petitioner's claim that trial counsel was ineffective for failing
to object to the Commonwealth's trial tactic of calling a witness for the sole purpose of
introducing the witness's statement and convicting petitioner based on alleged prior
inconsistent statements of its witnesses.

7. This Court erred by dismissing petitioner's claim that trial counsel was ineffective for failing
to object on the grounds that petitioner's conviction was based solely on unsworn
statements in violation of the Confrontation Clause.

8. This Court erred by dismissing petitioner's claim that trial counsel was ineffective for failure
to request an instruction on the element of "deliberation" in a case of first degree murder.

9. This Court erred by dismissing petitioner's claim that trial counsel was ineffective for failing
to interview and call as a witness Anthony Woods.

10. Petitioner is entitled to relief based upon the cumulative effect of the errors.

1. This Court denied due process of law guaranteed by the state and federal constitutions
when it denied the PCRA petition without a review of the entire record.

First, petitioner claims that this Court denied him due process of law guaranteed by the state·

and federal constitutions when it denied the PCRA petition without a review of the entire record.

Specifically, petitioner claims that "[i]n this case, the PCRA Unit did not have the entire record,

which makes it impossible for the PCRA Court to review the record." Statement of Matters

Complained of on Appeal, 6/8/15, at 2. Petitioner, however, failed to state which portion ofthe

record the PCRA Unit was' supposedly missing. As petitioner has not proven this claim, it fails.

To determine whether any of petitioner's claims merited a hearing, this Court conducted an

independent review of the trial record, petitioner's filings, as well as the Commonwealth's filings.

Petitioner's vague allegation that the PCRA Unit did not have the entire record in this case, without

5
 more, does not entitle petitioner to relief.17 Petitioner provides nothing in support of this claim

aside from his bare assertion of it. In order to be eligible for relief under the PCRA, the petitioner

must "plead and prove" each ineffectiveness claim in his PCRA petition. Commgnwealth v. Liebel,

825 A.2d 630, 632 (Pa. 2003), quoting 42 Pa.CS.A.§ 9543(a)(2)(ii). As petitioner has not proven th.is

claim, it fails.

2. This Court abused its discretion when it denied the motion for recusal.

Petitioner's second claim is that this Court abused its discretion when it denied petitioner's

motion for recusal. Petitioner claims that, after petitioner's right to petition for allowance of appeal

was restored by this Court, and the remaining claims were dismissed, this Court should have recused

itself because it had already pre-judged the remaining issues contained in the PCRA petition.

Because this Court did not in fact pre-judge the issues in bis PCRA claim, and because petitioner

cannot point to any support for his claim that this Court exhibited bias, unfairness, or impropriety,

this claim fails.

In petitioner's initial PCRA petition, he raised multiple issues, one of which was appellate

counsel's ineffectiveness for failing to file a requested petition for allowance of appeal. Following an

evidentiary hearing on January 11, 2013, this Court reinstated petitioner's right to petition for

allowance of appeal nsmcpro tune, and denied the other claims raised by petitioner. N.T. 1/11/13 at

148-54. So that petitioner understood the reasons why his other claims were denied, and could

therefore decide whether or not to file an appeal regarding the dismissal of any ofthose issues, this

Court explained on the record its reasons for its dismissal of petitioner's remaining cla.i.tns. ~ at

17 Petitioner's counsel has been counsel on this case since prior to the filing of the initial PCRA petition on May 1, 2012.
This is the first time this Court is hearing any complaint that the PCRA Unit did not have the complete record in this
case. And, she never asserted that her representation of petitioner for PCRA purposes was impeded by an incomplete
record. For purposes of the PCRA, an issue has been waived if "the petitioner could have raised it but failed to do so ..
. in .a prior state postconviction proceeding." 42 Pa.C.S. § 9544(b). As petitioner is now raising this claim for the first
tun, on 'PP''' of th, dismissal of hi, PCRA petition, it has been waived, and foil, fo, that reason as well, r~
6
 143-54. Subsequently, this Court realized that the other claims should instead have been dismissed

without prejudice, and noted this in its 1925(a) Opinion." The Superior Court agreed and vacated

this Court's dismissal of the remaining claims in petitioner's PCRA petition,_ so that they could be

pursued after the resolution of petitioner's petition for allowance of appeal to out Supreme Court.

Thereafter, our Supreme Court received petitioner's petition for allowance of appeal and denied it.

When petitioner re-filed his substantive PCRA claims, and added two new claims thereto, he also

filed a motion for recusal, alleging that this Court had "pre-judged" the issues that were being

refiled. -On September 9, 2014, this Court denied petitioner's motion for recusal.

In the motion, petitioner, without citing to any prejudicial statements made by this Court,

argued:

There is no question that the judge who presided over the numerically "first" PCRA has pre-
judged the issues which Petitioner now presents in what must be considered· his "first"
PCRA. Petitioner has a right to a full and fair heating of his first _PCRA. There is at the
minimum, an appearance of impropriety in the same judge presiding over the PCRA Petition
that is now before the Court and the appearance of prejudice. Recusal is required.

( ... J
The current PCRA Judge has expressed a fixed opinion regarding the issues contained in Mr.
Bennett's PCRA petition that is now before the court, even though some of the issues would
require an evidentiary hearing. The public record made at the conclusion of the evidentiary
hearing held on January 11, 2013 in this case has irrevocably called into question the judge's
impartiality and there is nothing the judge can do to change the record.

Petitioner's_ Motion fot; Recusal, 7 /11/14, at 9, 11.

At the conclusion of the evidentiary hearing held on January 11, 2013, this Court stated that

the claims had been reviewed by the Court, and were being _dismissed as meritless, and explained the

11At the conclusion of the cvidentiary hearing on January 11, 2013, this Court stated that ordinarily, with requests for
reinstatement of appellate rights 111111( pro 11111(, substantive PCRA claims usually are not .raised until the appellate
proceedings are finished. N .T. 1 /11 /13 at 149. However, since the substantive issues had been presented by PCRA
counsel, and this Court had reviewed them, this Court decided to address all of the PCRA claims raised .i,o "oac fell
swoop." kt PCRA counsel made no objection at that time, and did not ask the Court to hold a decision on the
substantive PCR.A. claims in abeyance. Id.
no
c/:
7
 Court's reasoning. Aside from that, petitioner has failed to produce any evidence of this Court's

bias, prejudice, or unfairness. Petitioner cannot cite to anything in the record in which this Court

expressed impropriety. "It is the burden of the party requesting recusal to produce evidence

establishing bias, prejudice or unfairness which raises a substantial doubt as to the jurist's ability to

preside impartially." Commonwealth v. Birdsong, 650 A.2d 26, 30 (Pa. 1994), citing Commonwealth

v. Abu-Jama!, 720 A.2d 79 (Pa. 1998).

This Court carefully considered each of the claims raised in petitioner's current PCRA

petition anew, and, in fact, granted an evidentiary hearing on one of the claims petitioner raised. ·As

this Court at no ti.me expressed prejudice with respect to petitioner's PCRA petition, petitioner's

motion for recusal was properly dismissed, and this claim fails.19

3. This Court erred when it ruled that Mr. Woods was not a credible witness.

Petitioner's third claim is that this Court erred when it ruled that Mr. Woods was not a

credible witness. Petitioner claimed that, had Mr. Woods been interviewed and called as a defense

witness, there is a reasonable probability that the outcome at trial would have been different. As this

Court's credibility determination of Mr. Woods' testimony was supported by the facts of record, this

claim fails.

At the PCRA stage, the PCRA court, as factfinder, is required to make credibility

determinations regarding witnesses. Commonwealth v. Medina, 92 A.3d 1210, 1219 (Pa.Super.

2014).

In support of his claim that trial counsel was ineffective for failing to interview and present

the testimony of Anthony Woods, petitioner submitted an affidavit signed by Mr. Woods, which

states the following: Anthony Woods, known as "Tez," was not contacted by petitioner's attorney ·

19 One could say any time a judge files a 907 Notice prior to dismissal of the claims, the PCRA petition has been pre- {
·\
I
I
~ 8
J,
 at the time of trial, and would have been willing to testify if he was contacted. At the time of the

shooting of Ramone Randolph, Woods was inside Neil's R&R Hideaway, and was not chasing

petitioner. Woods did not see petitioner with a gun. Anthony Woods Affidavit. 5/14/2013. Upon

review of this claim and Mr. Woods' affidavit, this Court granted petitioner an evidentiary hearing,

which was held on May 14, 2015.

At the hearing, following Mr. Woods' testimony, this Court determined that Mr. Woods was

not a credible witness, and that his testimony would not have changed the outcome at trial. N.T. ·

. 5/14/15 at 85. At the evidentiary hearing, Mt. Woods testified to the information contained in his

affidavit, which claimed that he was interviewed by police a day or two after the shooting at 811' and

Race Streets, but never signed a written statement." ~ at 9, 25.

When questioned regarding why he did not come forward with this information at the tune

of trial, Mr. Woods stated that he wanted nothing to do with the situation:

The Court: Well, five years ago would you have come at the time of trial?
[ ... ]
Mr. Woods: Well, yeah, I probably would have come at the trial. I would have to be
subpoenaed. Yeah, I would have come to testify, absolutely.
The Court: Why would you have to be subpoenaed?
Mr. Woods: Because I didn't sign no statement. I wasn't subpoenaed. I mean, why-
why I got to be in court if my friend - my friend got killed. I know a guy
from the neighborhood, I didn't want no parts of nothing. I didn't want to
be involved with nothing and nothing.
[ ... J
ADA Paul: So your best friend gets killed and you don't want to know anything about
who murdered him or what - you didn't want to follow the trial of someone
who killed your friend?
Mr. Woods: Listen, ma'am, what you don't understand, I grew up in the streets. I don't
want no parts. There are certain codes I just go by, bottom line. I don't
want no parts. I don't want to be involved.
The Court: Excuse me, what code?
Mr. Woods: I just don't - I don't want to be involved with nothing. I don't want my
name involved with nothing.

20
Assistant District Attorney Paul stated on the record that she searched the file, and could find no interview or
statement from Anthony Woods. N.T. 5/14/15 at 70. This statement was not "evidence" in the case, as statements of
counsel are not evidence.

9
 N.T. 5/14/15 at 30-33.

There were a number of inconsistencies throughout the entirety of Mr. Woods' testimony.

At trial, Mr. Woods' sister, Tanisha Woods, whom he stated that he' sees at least twice a week, ·

testified that she saw her brother chasing petitioner through the Park after the shooting. N.T.

5/14/15 at 29. Mr. Woods testified at the evidentiary hearing that,_despite liv.ing at.his mother's

home and seeing his sister at least twice a week, he had no idea that his sister testified at petitioner's

trial to that effect Id. at 36. However, Mr. Woods' affidavit makes clear that he was aware that he
l
-].
.; was reportedly seen chasing petitioner through the Park that night. In his affidavit, he stated, "I was

not chasing Malik Bennett at the time Randolph was shot." Id. at 6, 36; Exhibit A. Mr. Woods

claimed that, although he had conversations with individuals in his neighborhood about this case, it

was never brought up that his sister had testified, and, in fact, had had to be taken into custody and

compelled to testify. N.T. 5/14/15 at 34, 38.

When questioned regarding why Mr. Woods would change his mind and come forward with

this information over ten years later, Mr. Woods stated: "Actually, I got locked up, actually, if you

want to be honest." Id. at 41. Mr. Woods went on to explain that, while in custody, he met and

spoke with many friends of petitioner's, whom he would laugh and joke with about things that

happened in the neighborhood. Id. at 41-42.

At the evidentiary hearing, Mr. Woods' sister, Tanisha Woods, was called to testify by the

Commonwealth. She stood by her trial testimony and police statement, and refuted her brother's

affidavit and evidentiary hearing testimony. ~ Exhibit C-1, Tanisha Woods Police Statement. Ms.

Woods confirmed that she did not want to testify at trial, and was therefore taken into custody and
. .
compelled to testify. N.T. 5/14/15 at 59. At the hearing, Ms. Woods recollected that, following the

shooting, she was in a vehicle with her sister-in-law, when she received a phone call telling her that
·,I
her brother was out there. ~ at 60-61. She then jumped out of the vehicle and saw her brother
I
I
! 10
d,)
 chasing someone through the Park. Id. at 61. Ms. Woods fell to her knees in the middle of the

street and began yelling to her brother to come back because she did not want him to get hurt. l!h
at 61, 63. Mr. Woods stopped chasing petitioner, and ran back towards his sister. li at 61. The

.. two had a conversation in the middle of the street, and then they got into the vehicle with Ms .
!
Woods' sister-in-law, and drove home. Id. at 61-62.

Having considered the totality of the testimony at trial," as well as at the evidentiary hearing,

this Court made a proper determination that Mr. Woods was not a credible witness, and dismissed

this claim. As this determination was supported by the factual record, and within the discretion of

this Court, this claim falls.

4. This Court erred by dismissing petitioner's claim that trial counsel was ineffective for
failing to play the 9-1-1 tape.

Petitioner's fourth claim is that this Court erred in dismissing petitioner's claim that trial

counsel was ineffective for failing to play a 9-1-1 tape, which portrayed events "in a way that

conflicts with the prior statements of eyewitnesses, and squares with any autopsy report which

indicates that the decedent was not shot at dose range."22 Because the decision by trial counsel not

to play the 9-1-1 tape at trial was a reasonable trial strategy, this claim lacks merit, and was properly

dismissed by this Court.

According to the Pennsylvania Supreme Court in Commonwealth v. Balodis, 747 A.2d 34,

343 (Pa. 2000), counsel is presumed effective, and under 42 Pa.C.S. § 9543(a), petitioner has the

burden of proving ineffective assistance of counsel. In order to be eligible for PCRA relief due to

ineffective assistance, petitioner is required to prove that such assistance "so undermined the truth-

21At trial, multiple witnesses corroborated Ms. Woods' testimony that, following the shooting, petitioner was seen
running away from the scene. S« Statement of Facts, supra.

22 The

Jy
autopsy report, to which petitioner actually objects, did not indicate that the decedent was not shot at close raoge.
::::~:e~othlngill the report indicated that th, shooting o::ua,d at close "ngc, that would be an impermissible
 determining process that no reliable adjudication of guilt or innocence could have taken place." 42

Pa.CS. § 9543(a)(2)(ii). Petitioner "must prove (1) that the underlying claim has arguable merit, (2)

that counsel's conduct was without a reasonable basis designed to effectuate his or her client's

interest, and (3) that counsel's ineffectiveness prejudiced (petitioner)." Commonwealth v. AJlen, 833

A.2d 800, 802 (Pa.Super, 2003) (citations omitted). "All three prongs of this test must be satisfied.

If [petitioner] fails to meet even one prong of the test, his conviction will not be reversed on the

basis of ineffective assistance of counsel." Conunonwealth v. O'Bipos, 849 A.2d 243, 249

(Pa.Super. 2004).

As a general rule, '"trial strategy is a matter best left to counsel and [] a defendant is not

entitled to relief simply because the strategy is unsuccessful."' Cotnmonwealth v. McMaster, 666

A.2d 724, 732 (Pa.Super. 1995), quotingCommo!\wealth v. Tippens, 598 A.2d 553, 556 (Pa.Super.

1991).

Trial decisions ... are within the exclusive province of counsel. Counsel will not
be declared ineffective where, as here, his trial strategy had a reasonable basis
designed to effectuate his client's interest ... and appellant has failed to show
that the alternatives not chosen offered a potential for success substantially
greater than the strategy and tactics actually utilized.

Commonwealth v. Metzger, 441 A.2d 1225, 1229-30 (Pa.Super. 1981)(citations omitted).

The test for deciding whether counsel had a reasonable basis for his action or inaction is

"whether no competent counsel would have chosen that action or inaction, or, the .alternativenot

chosen, offered a significantly greater potential chance of success." Commonwealth v. Stewart, 84

A.3d 701, 707 (Pa.Super. 2014), appeal denied, 93 A.3d 463 (Pa. 2014). Counsel's decisions are

considered reasonable if they effectuate the client's interests. 14..

· Petitioner, who provided no transcript of the 9-1-1 tape to this Court, claims that, on the

'I tape, the female caller can be heard saying, "Ah ... I'm at the comer of 33'd and Reed and they're
' I

12
 outside shooting. The bar just let out, and they're ju ... it's like the OK Corral out there." Because

trial counsel had a reasonable basis for not playing the 9-1-1 tape at trial, this claim fails.

Petitioner's only support for this claim is that the 9-1-1 tape says "they're" shooting, which

suggests that more than one person was firing shots." Without citing to the record, petitioner states

that the Commonwealth's theory was that ''only Mr. Bennett was firing shots." This claim is

without merit.

Under the second pr<;>ng of the ineffectiveness test, trial counsel's decision not to play a 9-1-

1 tape in which a woman described the shooting for which petitioner was charged as "just like the

OK Corral," was a reasonable one. Not one witness at trial even suggested there was an additional

shooter, nor did the ballistics evidence support such a claim. Five eyewitnesses testified that they

heard gunshots and saw petitioner, wearing a red, white, and blue jacket, run from the victim's car or

run through the Park immediately after the shots were fired: Ronnetta Williams, who was standing

in the middle of the street when she heard the gunshots, testified that she saw petitioner running

away from the car with a gun in his hand. Teahonda Wilkerson, also standing outside when the

shots were fired, testified that she saw petitioner run away from the victim's car and run through the

Park across the street. Tanisha Woods testified that after she heard the shots, she received a

telephone call notifying her that her brother, Anthony Woods, was chasing a male as he fled the

scene of the shooting. Ms. Woods testified that she then ran up the block and saw her brother

chasing petitioner. Raymond White, standing outside of his mother's house at the time of the

shooting, also testified that he saw a male run through the Park immediately after the shots were

fued. Finally, Khayree Gay, the victim's nephew, testified that he was walking 'down the street and

saw a male running through the Park after he heard the shots. After hearing the testimony of five

l
II 23 Though petitioner discusses what the 9-1-1 tape says, it was not submitted with either the amended petition or with
' petitioner's response to the Commonwealth's motion to dismiss.
'
13
 eyewitnesses who, in sum, directly or circumstantiall~ saw petitioner flee the scene _with a gun in his

hand> counsel's decision not to alert the jury that the setting on that stteet corner was comparable to

the Wild West was a reasonable one. Therefore, this· Court properly determined that this claim

lacked merit, and it fails.
,. 5. This Court erred by dismissing petitioner's claim that trial counsel was ineffective for
failing to object to the admission of the autopsy report on the grounds that it was
testimonial hearsay in violation of the Confrontation Clause.

Petitioner's fifth claim is that trial counsel was ineffective for failing to object to the

admission of the autopsy report on grounds that it was testimonial hearsay in violation of the

Confrontation Clause of the Sixth Amendment. Although Dr. Gulino based his testimony on the

findings of Dr. McDonald, because petitioner suffered no prejudice as a result of this, this Court did

not err in dismissing this claim, and it fails.

In Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011). the defendant was charged with

driving under the influence (DUI). At trial, a forensic lab report of the defendant's blood alcohol

content as analyzed and prepared by the New Mexico Department of Health was offered into

evidence. The report was completed, signed and certified by an analyst who was not called to testify.

li at 2711-12. A different analyst testified as to the procedures and equipment used but admitted

that he had no involvement with the specific sample. Id. at 2712.

(S]urrogate testimony of the kind (the testifying witness] was equipped to give could not
convey what [the certifying analyst] knew or observed about the events bis certification
concerned, i.e. the particular test and testing process he employed. Nor could such surrogate
testimony expose any lapses or lies on the certifying analyst's part.

Id. at 2715.

In Corrunonwealth v. Yohe, 39 A.3d 381 (Pa.Super. 2012), adoctor testified about a blood

sample in a DUI case. The doctor "did not handle appellee's blood sample, prepare portions for

testing, place the prepared portions in the testing machines, or retrieve the portions after testing."

1
Id. at 389. But he did "certify the results of the testing and author the report sought to be admitted

14 (1\
 as evidence against appellee." Id. at 390. The Superior Court found that distinction to be

dispositive.

At trial, Dr. Anthony Gulino, as Chief Medical Examiner, testified regarding the autopsy

report that had been prepared by Dr. Greg McDonald:

ADA ZARAllO: Dr. Gulino, you've indicated that you're the chief medical examiner,
How long have you held that position, sir?
DR. GULINO: Since April of 2008.
( ... J
ADA ZARALLO: Dr. Gulino, you reviewed a specific file upon my request. And who was
the decedent's name? Who was the decedent?
DR. GULINO: The decedent was Ramone Randolph.
ADA ZARALLO: Now, you did not perform this autopsy; is that correct?
DR. GU.UNO: That's correct.
ADA ZARALLO: Who did perform it?
DR. GULINO: Dr. Greg McDonald, who is no longer with the Medical Examiner's Office.
ADA ZARALLO: Did you, in fact, review Dr. McDonald's findings?
DR. GULINO: Yes, I did.
ADA ZARALLO: Beyond this type of report, did you review all of the other - anything else
that still existed with respect to his findings?
DR. GULINO: I reviewed all of the documents in the Medical Examiner's case file as well
as the photographs which were taken at the time of the autopsy.
ADA ZARALLO: Was a manner of death determined in the autopsy of Mr. Randolph?
DR. GULINO: Yes.
ADA ZARALLO: What was the manner of death?
DR. GULINO: The manner of death is homicide.
ADA ZARALLO: Was a cause of death determined?
DR. GULINO: Yes.
ADA ZARAllO: What was the cause of death, sir?
DR. GULINO: Multiple gunshot wounds.
ADA ZARAILO: Were the specific locations gunshot wounds determined?
DR. GULINO: Yes.
ADA ZARALLO: Can you tell us, first of all, was there any way for Dr. McDonald or you
or anyone to determine the order with which the gunshots were received by the victim?
DR. GULINO: No.

Notes of Testimony (N.T.) 5/28/2009 at 149, 151.:.53.

Because none of Dr. Gulino's testimony is cast in terms of Dr. Gulino's own conclusion that

he reached from conducting tests or analyzing the information, it might seem appropriate to call Dr.

Gulino a surrogate. However, after analysis of this issue, this Court determined that, even if there

was a violation of petitioner's rights under the Confrontation Clause, counsel's failure to raise this
15
 issue at trial did not actually prejudice petitioner. To establish the prejudice prong, petitioner must

show that there is a "reasonable probability" that the outcome of the proceedings would have been

different but for counsel's ineffectiveness. Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa. 200.8).

Had trial counsel objected to Dr. Gulino's testimony, the outcome at trial would not have

.I changed. Testimony as to manner and cause of deathis not an element of the charge of murder; the
·I
!
element to be proven is that a particular person is dead. Commonwealth v. Meder, 611 A.2d 213,

217 (Pa.Super. 1992). In Meder, the Superior Court found that the testimony of the defendant's

mother, who testified that she found the victim lying cold and lifeless on the side of the defendant's
.,I I

·1 bed, was sufficient to establish the element of death in a murder prosecution. Id. Here, there was
~
I
sufficient evidence before the jury that the individual in question was dead.24 Further, Dr. Gulino's

testimony was not such that only the person who conducted the autopsy could testify about it: there

was no evidence of any stippling or as to the distance from which the shots would have been fired.

The autopsy report, from which Dr. Gulino's testimony emanated, merely stated that the victim had

died, that the manner of death was homicide, and that the cause of death was multiple gunshot

wounds. N.T. 5/28/09 at 153-55. For all intents and purposes, it was superfluous. Had counsel

raised this claim at trial, the outcome would still have been the same, given Officer Graber's

testimony. Therefore, this Court properly determined that this claim failed.

6. This Court erred by dismissing petitioner's claim that trial counsel was ineffective for
failing to object to the Commonwealth's trial tactic of calling a witness for the sole purpose
of introducing the witness's statement and convicting petitioner based on alleged prior
inconsistent statement of its witnesses.

Petitioner's sixth claim is that trial counsel was ineffective for failing to object to the

Commonwealth's tactic of calling witnesses in order to introduce thei.r prior inconsistent statements.

24In fact, the statement given by Officer Graber, who arrived at the scene and accompanied the victim to the hospital,
where he was ultimately pronounced dead, was introduced ioto evidence. In that statement, Officer Graber states that
the victim was pronounced dead at HUP by Dr. Brashow at 2:58 A.M. N.T. 5/29/09 at 34; Exhibit C-18. Counsel did
not raise a PCRA claim as to this witness's testimony.

16
 Petitioner claims that the Commonwealth called witnesses "for the sole purpose of introducing and

convicting based on alleged prior inconsistent statements of its witnesses." Petitioner's only support

for this claim is that the Commonwealth stated in its closing argument that he had anticipated that

witnesses would "go south." Because the prior inconsistent statements were properly admitted, this

Court properly determined that this claim lacked merit, and it fails.

Under Corrunonwealth v. Bradi, a witness's prior inconsistent statement is admissible as

1 substantive evidence as well as for impeachment purposes. 610 A.2d 66, 70 (Pa. 1986). In
i
I Commonwealth v. Lively, our Supreme Court found that a prior inconsistent statement is admissible
;I
as substantive evidence where it was given under circumstances that demonstrate reliability and

trustworthiness. 610 A.2d at 7, 9 (Pa. 1992). The reliability of a prior inconsistent statement is

based on: "(1) whether the statement is given under reliable _circumstances; and (2) whether the

declarant is available for cross-examination." Conunonwealth y. Carmody, 799 A.2d 143, 148

(Pa.Super, 2002). With respect to reliability, a statement is reliable if it is given "under oath at a

formal legal proceeding; or the statement had been reduced to a writing signed and adopted by the

witness; or a statement that is a contemporaneous verbatim. recording of the witness's statements."

Lively, 610 A.2d at 10.

The Commonwealth's subjective expectation as to how a witness will testify is irrelevant.

What matters for purposes of admissibility is the reliability and trustworthiness of the prior

inconsistent statement. If reliability and trustworthiness is established, the prior statement is

admissible as substantive evidence if the present testimony from the declarant is inconsistent with it.

Nothing in petitioner's claim addresses the reliability or trustworthiness of the witnesses' prior

inconsistent statements that were admitted at trial Therefore, as the prior inconsistent statements

were properly admitted under Brady/Li~. this Court properly dismissed this claim for lack of

merit, and it fails.

17
 7. This Court erred by dismissing petitioner's claim that trial counsel was ineffective for
failing to object on the grounds that petitioner's conviction was based solely on unswom
statements in violation of the Confrontation Clause.

Petitioner's seventh claim is that trial counsel was ineffective for failing to object to.

petitioner's conviction, which was based on the unsworn testimony of "various witnesses." Here,

again, petitioner is referring to the prior statements that witnesses gave to police and which were

admitted at trial pursuant to ~/Lively and their progeny. Th~ fact that the prior statements

were unsworn makes no difference under the Brady/Lively line ofcases. What matters is that the

witnesses we.re under oath when they testified in court. See Commonwealth v. Chmiel, 738 A.2d

406, 419 (Pa. 1999) (stating that the reasoning for the .rule set forth in Brady/Lively was that "since

the witness in question would testify in court, where she would be under oath and subject to cross-

examination, the acknowledged dangers of hearsay were largely nonexistent."). Therefore, as eyery

witness who testified at trial was sworn in when he or she testified, this Court properly determined

that this claim lacked merit, and it fails.

8. This Court erred by dismissing petitioner's claim that trial counsel was ineffective for
failure to request an instruction on the element of "deliberation" in a case of first degree
murder.

Petitioner's eighth claim is that that trial counsel was ineffective for failing to request an

instruction on the element of "deliberation" in a case of first degree murder. Because this Court did

instruct on "deliberation," trial counsel was not ineffective for failing to request it, and this claim

fails.

This Court's jury instruction was:

Murder of the first degree is a criminal homicide committed with a specific intent to kill. It
is this specific intent to kill which distinguishes it from other degrees of murder.

An intentional killing is a killing by any kind of willful, deliberate, and premeditated act.
Therefore, in order to find the defendant guilty of first degree murder, you must find that
the killing was a willful, deliberate and premeditated act.
So what is meant by these words? If an intention to kill exists, then in the eyes of the law
the killing is willful. If this intent is accompanied by such circumstances as show a mind
3\
18

\\.
I
 fully conscious of its own purpose it is deliberate.And if sufficient time has been afforded to
enable the mind of the killer to fully frame the design to kill and to select the instrument or
to frame the plan to carry this design into execution, it is premeditated.

N.T. 6/1/2009 at 118-19 (emphasis added).

Petitioner does not argue how this Court's specific intent instruction fails to define the

element of "deliberation," nor does he provide the language which he believes should have been

included in that instruction. In order to be eligible for relief under the PCRA, petitioner must

"plead and prove" each claim; bare assertions of error, without more, are not enough. Li~ 825

A.2d at 632. Furthermore, this Court's instruction closely tracked the language of the Pennsylvania

Standard Suggested Jury Instruction on first degree murder:

1. The defendant has been charged with the offense of first-degree murder. First-degree
murder is a murder in which the perpetrator has the specific intent to kill. To find the
defendant guilty of this offense, you must find that the following three elements have been
proven beyond a reasonable doubt:

First, that [name of victim]is dead;
Second, that the defendant killed [him] (her]; and
Third,that the defendant did so with the specific intent to kill and with malice.

2. A person has the specific intent to kill if he or she has a fully formed intent to kill and is
conscious of his or her own intention. As my earlier definition of malice indicates, a killing
by a person who has the specific intent to kill is a killing with malice [provided that it is also
without [circumstances reducing the killing to voluntary manslaughter) [or] [any lawful
justification or excuse]].

[3. Stated differently, a killing is with specific intent to kill if it is [willful, deliberate, and
premeditated] [by means of poison] (by lying in wait].]
[4. The specific intent to kill [including the premeditation] needed for first-degree murder
does not require planning or previous thought or any particular length of time. It can occur
quickly. All that is necessary is that there be time enough so that the defendant can and does
fully form an intent to kill and is conscious of that intention.)

Pa.S.S.J.I. (Crim) § 15.2502A (2005).

~ Commonwealth v. Prosdocimo, 578 A.2d 1273, 1277 (Pa. 1990) (holding that a jury charge that

closely tracked the language of the suggested standard jury instructions was accurate, adequate, and

19
 ..

sufficiently clear to inform the jury of the law applicable to the case). Therefore, this Court properly

determined that this claim lacked merit, and it fails.25

9. This Court erred by dismissing petitioner's claim that trial counsel was ineffective for
failing to interview and call as a witness Anthony Woods.

Petitioner's ninth claim is that this Court erred by dismissing petitioner's claim that trial

counsel was ineffective for failing to interview and call as a witness Anthony Woods. Because

petitioner failed to prove the witness was willing to testify at trial, and because this Court determined

that Mr. Woods was not a credible witness and that his testimony would not have changed the

outcome at trial, this claim fails.

In order to establish counsel ineffectiveness for failure to call a witness, petitioner must

demonstrate (1) that the witness existed, (2) was available to testify on petitioner's behalf, (3) that

counsel knew or should have known that the witness existed, (4) that the witness was willing to

testify on petitioner's behalf, and, (5) that the absence of such testimony prejudiced petitioner.

Commonwealth v. Brown, 767 A.2d 576, 581-82 (Pa.Super. 2001).

At the evidenti.ary heating, when questioned regarding whether he would have testified on

petitioner's behalf had trial counsel contacted him, Mr. Woods stated that, at the time of trial, he

"didn't want no parts of nothing. I didn't want to be involved with nothing and nothing." N.T.

5/14/15 at 31. Mr. Woods also testified that he abides by a certain code of the streets:

Mr. Woods: Listen, ma'am, what you don't understand, I grew up in the streets. I don't
want no parts. There are certain codes I just go by, bottom line. I don't
want no parts. I don't want to be involved.
The Court: Excuse me, what code?
Mr. Woods: I just don't - I don't want to be involved with nothing. I don't want my
name involved with nothing.

Id. at 33.

0)
25 Petitioner also stated in his PCRA petition that the evidence presented by the Commonwealth was insufficient because
there is no evidence of'"deliberation,' which is an elemental fact that must be proven to establish first degree murder."
This claim, not mt in terms of ineffective assistance of co:;d, has been waived.
 As Mr. Woods himself stated at the evidentiary hearing that he wanted nothing to do with this

matter at the time of trial, petitioner has failed to prove that the witness was willing' and able to

te.stify at the time of trial.

Additionally, as explained supra, this Court discredited the testimony of Mr. Woods, and

found that his testimony would not have changed the outcome at trial 26

Therefore, this Court properly dismissed petitioner's claim that trial counsel was ineffective

for failing to interview and call as a witness Anthony Woods, and this claim fails.

10. Petitioner is entitled to relief based upon the cumulative effect of the errors.

Petitioner's tenth claim is that this Court erred in dismissing his claim that he should be

entitled to relief from his convictions based on the cumulative effect of the en-ors described in his

PCRA petition. Because this Court properly determined that all of petitioner's claims failed, this

claim regarding the cumula rive effect of the errors fails as well. Therefore, this Court did not en in

dismissing it.

It is well settled that "no number of failed claims may collectively warrant relief if they fail to

do so individually." Commonwealth v. Tedford, 960 A.2d 1, 56 (Pa. 2008). It is only where

instances of deficient performance are found that prejudice can be properly premised upon

cumulative error. Commonwealth v. Johnson, 966 A.2d SZ3, 532 (Pa. 2009). Therefore, because

instances of deficient performance were not found in this case, there was no cumulative effect of the

errors, and this claim fails.

26 ~ issue 3 at pp.8-11, 111pra.

21
 For the foregoing reasons, this Court's dismissal of petitioner's PCRA claims should be

affirmed.

BY THE COURT:

22