Com. v. Jones, B.

J-S37012-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

BRYANT JONES

Appellant No. 865 WDA 2015

Appeal from the PCRA Order May 15, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0002915-2008

BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JULY 25, 2016

Appellant, Bryant Jones, appeals from the order entered in the

Allegheny County Court of Common Pleas, which dismissed his petition

brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

In its opinion, the trial court fully and correctly sets forth the facts of

this case. Therefore, we have no reason to restate them. Procedurally, on

March 28, 2008, the Commonwealth charged Appellant with criminal

homicide, robbery, burglary, and firearms not to be carried without a

license. Appellant proceeded to a jury trial on June 22, 2010. On June 24,

2010, the jury convicted Appellant of first-degree murder, robbery, and

firearms not to be carried without a license. On September 9, 2010, the
____________________________________________

1
42 Pa.C.S.A. §§ 9541-9546.
J-S37012-16

court sentenced Appellant to mandatory life imprisonment without the

possibility of parole for the first-degree murder conviction and a term of five

(5) to ten (10) years’ imprisonment for the robbery conviction. The court

imposed Appellant’s sentence for the first-degree murder conviction

consecutive to Appellant’s sentence for the robbery conviction.

On December 9, 2010, Appellant timely filed a pro se PCRA petition in

which he asked the court to reinstate his direct appeal rights nunc pro tunc.

The PCRA court appointed counsel on December 15, 2010, and counsel filed

an amended PCRA petition on March 15, 2011. On March 24, 2011, the

PCRA court reinstated Appellant’s direct appeal rights nunc pro tunc, and

Appellant filed a nunc pro tunc notice of appeal on March 29, 2011. On

December 3, 2012, this Court affirmed the judgment of sentence, and our

Supreme Court denied allowance of appeal on April 30, 2013.

Commonwealth v. Jones, 64 A.3d 9 (Pa.Super. 2012), appeal denied, 619

Pa. 721, 65 A.3d 413 (2013).

On June 6, 2013, Appellant timely filed a pro se PCRA petition, and the

PCRA court appointed counsel on July 8, 2013. Counsel filed an amended

PCRA petition on September 8, 2014, which raised various claims of

ineffective assistance of trial counsel. After a hearing on May 7, 2015, the

PCRA court denied relief on May 15, 2015. Appellant timely filed a notice of

appeal on June 2, 2015. On June 3, 2015, the PCRA court ordered Appellant

to file a concise statement of errors complained of on appeal pursuant to

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J-S37012-16

Pa.R.A.P. 1925(b), and Appellant timely complied on June 16, 2015.

Appellant raises the following issues for our review:

WHETHER APPELLANT’S TRIAL COUNSEL…WAS
INEFFECTIVE, WHICH IN THE CIRCUMSTANCES OF [THIS]
PARTICULAR CASE, SO UNDERMINED THE TRUTH-
DETERMINING PROCESS THAT NO RELIABLE
ADJUDICATION OF GUILT OR INNOCENCE COULD HAVE
TAKEN PLACE?

WHETHER THERE WAS A VIOLATION OF THE
CONSTITUTION OF THE COMMONWEALTH OR THE
CONSTITUTION OF THE UNITED STATES WHICH SO
UNDERMINED THE TRUTH-DETERMINING PROCESS THAT
NO RELIABLE ADJUDICATION OF GUILT OR INNOCENCE
COULD HAVE TAKEN PLACE?

(Appellant’s Brief at 6).

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). We give no such deference,

however, to the court’s legal conclusions. Commonwealth v. Ford, 44

A.3d 1190, 1194 (Pa.Super. 2012). The PCRA court findings will not be

disturbed unless the certified record provides no support for the findings.

Commonwealth v. Taylor, 933 A.2d 1035, 1040 (Pa.Super. 2007), appeal

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J-S37012-16

denied, 597 Pa. 715, 951 A.2d 1163 (2008). If the record supports a PCRA

court’s credibility determination, it is binding on the appellate court.

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014).

The law presumes counsel has rendered effective assistance.

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When

asserting a claim of ineffective assistance of counsel, the petitioner is

required to demonstrate that: (1) the underlying claim is of arguable merit,

(2) counsel had no reasonable strategic basis for his action or inaction, and,

(3) but for the errors and omissions of counsel, there is a reasonable

probability that the outcome of the proceedings would have been different.

Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999).

The failure to satisfy any prong of the test for ineffectiveness will cause the

claim to fail. Williams, supra. “The threshold inquiry in ineffectiveness

claims is whether the issue/argument/tactic which counsel has foregone and

which forms the basis for the assertion of ineffectiveness is of arguable

merit….” Commonwealth v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194

(1994). “Counsel cannot be found ineffective for failing to pursue a baseless

or meritless claim.” Commonwealth v. Poplawski, 852 A.2d 323, 327

(Pa.Super. 2004).

Once this threshold is met we apply the ‘reasonable basis’
test to determine whether counsel’s chosen course was
designed to effectuate his client’s interests. If we conclude
that the particular course chosen by counsel had some
reasonable basis, our inquiry ceases and counsel’s
assistance is deemed effective.

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J-S37012-16

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).

Prejudice is established when [an appellant] demonstrates
that counsel’s chosen course of action had an adverse
effect on the outcome of the proceedings. The [appellant]
must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome. In [Kimball, supra], we held
that a “criminal [appellant] alleging prejudice must show
that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.”

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883

(2002) (some internal citations and quotation marks omitted).

A petitioner’s claim that counsel was ineffective for failing to call a

particular witness, requires certain proof:

[T]he [petitioner] must show: (1) that the witness existed;
(2) that the witness was available; (3) that counsel was
informed of the existence of the witness or should have
known of the witness’ existence; (4) that the witness was
prepared to cooperate and would have testified on
[petitioner’s] behalf; and (5) that the absence of the
testimony prejudiced [petitioner].

Commonwealth v. Michaud, 70 A.3d 862, 868 (Pa.Super. 2013).

Significantly, a court shall not find trial counsel ineffective for failure to call a

witness unless there is some showing by the petitioner that the witness’

testimony would have been beneficial under the circumstances of petitioner’s

case. Commonwealth v. Auker, 545 Pa. 521, 548, 681 A.2d 1305, 1319

(1996). “[F]ailure to call a witness is not per se ineffective assistance of

counsel for such decision usually involves matters of trial strategy.”

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J-S37012-16

Michaud, supra at 868.

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Randal B.

Todd, we conclude Appellant’s issues merit no relief. The trial court opinion

comprehensively discusses and properly disposes of the questions

presented. (See Trial Court Opinion, filed January 4, 2016, at 9-14)

(finding: (issues 1-2) initially, Appellant’s claims regarding timeline of

shooting are premised on assumptions, which are not supported by record;

Appellant’s argument assumes Ms. Burwell placed 911 call immediately after

shooting at 11:42 a.m.; however, Officer Hess stated time of 911 call was

approximate, and Ms. Burwell testified that some time passed before she

called 911 because she was not immediately aware that shooting had

occurred; given uncertainty over exact time of shooting, Appellant did not

demonstrate that trial counsel’s failure to object to Detective Hennessy’s

testimony concerning timeline would have affected outcome of trial; because

Appellant presented no conclusive evidence as to exact time shooting took

place, his claim that Detective Steckel’s testimony would have established

Appellant left Victim’s residence prior to shooting also has no merit;

Detective Steckel’s testimony merely would have shown Appellant left

Victim’s residence eight minutes prior to 911 call instead of four minutes; in

light of Victim’s brother placement of Appellant in house at time of shooting,

this testimony would not have changed outcome of trial; Appellant’s failure

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J-S37012-16

to establish exact time of shooting similarly undermines his claim that he

was prejudiced by trial counsel’s failure to object to authentication of various

cellphone records; Appellant’s bald assertion of time differences between

testimony and cellphone records does not establish that records were

manipulated; instead, time differences merely shows some differences in

each timekeeping device used during events; further, these differences do

not undermine Commonwealth’s case due to fact that Appellant did not

establish exact timeline for shooting and 911 call; under these

circumstances, Appellant failed to demonstrate that objection to

authentication of cellphone records would have changed outcome of trial; to

extent Appellant alleges trial strategy was to question timeline of shooting,

trial counsel testified credibly at PCRA hearing that strategy was to establish

Victim’s brother as shooter; trial counsel discussed trial strategy with

Appellant multiple times, and parties agreed that Appellant would testify to

events which occurred on day of shooting; trial counsel further testified that

trial strategy was negatively impacted by Appellant’s last minute decision

not to testify; record supports trial counsel’s testimony from PCRA hearing

because record demonstrates that trial counsel maintained this strategy

throughout trial; therefore, Appellant failed to prove any of his ineffective

assistance of counsel claims, and court properly dismissed Appellant’s PCRA

petition). Accordingly, we affirm on the basis of the trial court’s opinion.

Order affirmed.

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J-S37012-16

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/25/2016

-8-
 Circulated 06/27/2016 11:35 AM

IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA

COMMONWEALTH OF
PENNSYLVANIA CRIMINAL DIVISION

v. NO: CP-02-CR-0002915-2008

BRYANT JONES,

Petitioner. PCRA

OPINION

JUDGE RANDAL B. TODD

COPIES SENT TO:

Stephen A. Zappala, Jr.
District Attorney

By

Ronald Wabby, Esquire
Assistant District Attorney
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Bryant Jones, Petitioner
#JS7224
SCI Coal Township
1 Kelley Drive
Coal Township, PA 17866
 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA

COMMONWEALTH OF ) CRIMINAL DIVISION
PENNSYLVANIA )
)
v. ) NO: CP-02-0002915-2008
)
BRYANT JONES, )
)
Petitioner. )

OPINION

TODD,J.

January 4, 2016

This is an appeal by Petitioner, Bryant Jones, from an order entered on May 15, 2015

dismissing Petitioner's Amended PCRA Petition. On June 6, 2013 Petitioner filed a prose

PCRA Petition and on July 8, 2013 an order was entered appointing counsel. On September 8,

2014 counsel filed an amended PCRA Petition. On February 23, 2015 the Commonwealth filed

its answer to the PCRA Petition. On March 2, 2015 counsel filed a Motion For Leave to the

Supplement Amended PCRA Petition. An evidentiary hearing was held on May 7, 2015. On

May 15, 2015 an order was entered denying Petitioner's Amended PCRA Petition. On June 2,

2015 Petitioner filed a timely notice of appeal. On June, 2015 an order was entered directing

Petitioner to file a Concise Statement of Matters Complained of on Appeal pursuant to Pa.RAP.

1925(b). On June 16, 2015 Petitioner filed his Concise Statement that set forth the following:

"I. Appellant's prior counsel was ineffective for failing to object to hearsay
testimony and/or seek the exclusion of such testimony given by Detective Bartley
Hennessy, for failing to call Detective Steckel to testify, and for failing to object
to the Commonwealth's improper authentication of telephone records, 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?"

1
 "II. There was a violation of the Constitution of this Commonwealth or the
Constitution of the United States 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."

BACKGROUND
Petitioner was convicted following a jury trial on June 24, 2010 of murder in the first

degree as a result of the shooting death of Randy Edwards on January 13, 2008. The shooting

took place at Edward's home at 1304 Riggs Ave. in Braddock, Pennsylvania where he lived with

his brother, Terrence Edwards, and Terrence's girlfriend, Dominique Burwell. Randy Edwards

was a known drug dealer in the Braddock area and the evidence established that Petitioner

arranged to meet Edwards at his home to purchase drugs. The jury found that Petitioner entered

the home and shot and killed Edwards, stole his drugs and fled the scene in the jitney that

brought him. It was by sheer chance. however, that on the day of the shooting, Edwards' home

was under surveillance by detectives as part of a joint investigation by the U.S. Attorney's office

and the FBI into his drug dealing. This surveillance included detectives conducting visual

surveillance of Edward's home. which was also being videotaped, as well as monitoring of his

phone. Detectives were also following vehicles that came to and left the home in an attempt to

identify individuals dealing with Edwards. In his Amended PCRA Petition, Petitioner asserts

that trial counsel was ineffective by failing to object to certain hearsay testimony of one of the

detectives that was admitted to establish the time that Petitioner arrived at the residence and left

the residence and which was used to establish Petitioner's presence in the residence on the day of

the shooting.

At trial the Commonwealth called Officer Eric Hess of the North Braddock Police

Department who testified that on January 13, 2008 his department received a call to respond to

2
 1304 Ridge Ave. for a report of a male with a gun. Officer Hess testified that the call was

received at 11 :42 a.m. but stated that the time was approximate in that it could have been a

minute before or a minute after. (T., p. 56). On cross examination Officer Hess testified that the

time was as accurate as it could be. (T., p. 65)

The Commonwealth called Detective Bartley Hennessy, who was part of the team of

detectives conducting the surveillance, who testified that he and Detective Mullen were in a

vehicle conducting mobile surveillance while another detective was intercepting phone calls by

remote monitoring. (T., p. 70) He also testified that another detective, Detective Steckel, was in

a surveillance van near the residence videotaping portions of the activity outside the residence.
1
(T., p. 71) Detective Steckel would radio pertinent information to Detective Hennessy

concerning the surveillance. Detective Hennessy testified as follows:

Q. At a certain time were you informed that there was some activity in
the house you were surveying?
A. Yes, sir.
Q. What was the information you received?
A. At approximately 11: 34 we received information, I received
information from Detective Steckel that indicated a black male had
gone into the residence and a gold colored SUV was parked in
front of the residence.
Q. As far as that time goes, as you documented it, did you state
approximately 11 :34?
A. I did, yes.
Q. Why did you say approximately as opposed to exactly 11:34?
A. We were working off the clock radio and the clock radio is set for
whatever it was set, I don't know if it was set at an accurate time,
but it was set for us to use. It was close to being accurate.
Q. Since this day and since speaking with myself and other detectives
on this case, have you become aware of the fact that there was a
call detail log that was recovered for the cell phone of Randy
Edwards?

1
Detective Hennessy testified that Detective Steckel was not available to testify because he had
undergone knee replacement surgery and was not feeling well. (T., p. 71)

3
 A. Yes.
Q. Did you become aware that at 11:36 a.m. there is a call from
Randy Edwards to a cell phone used by a jitney driver, driver
Richard Green?
A. Yes.
Q. Can you explain how your time is 11:34, two minutes before he is
entering the residence and that's two minutes before the call was
made?
MR. JOBE: Your Honor, I'm going to object to speculation.
THE COURT: I'll allow it. Go ahead.
THE WITNESS: The only explanation I have, if every one of you
checked your watch, it would be a minute off or 30 seconds off or
a minute and a half.
Q. So 11 :34, which is the time you documented, you have that a black
male is entering the residence, correct?
A. Correct.
Q. Were you told what kind of vehicle it was that was associated with
the black male?
A. It was a gold colored vehicle.
Q. What's the next piece of information you have that you document?
A. At 11:38 I was informed by Detective Steckel that a black male had
exited the residence and had entered the passenger side of the gold
colored vehicle. (T.,pp. 74-76)

There was no objection made by trial counsel to the hearsay testimony concerning Detective

Steckel' s observations of a black male entering and exiting the residence and the times at which

he did so.

Detective Hennessy then testified that they followed the gold Jeep in an attempt to

identify its occupants but were not able to do so and instead only obtain the license plate number.

He then testified that he again received information from Detective Steckel that a blue SUV

arrived at the residence and so he was returning to the residence. As he was returning to the

residence Detective Steckel also reported that the local police had arrived at the residence and

that another detective monitoring the calls reported that he had heard that a shooting had

4
occurred inside the residence. Hennessy received this information at approximately 11:45 AM.

(T. 79)

The Commonwealth also called Detective Shane Countryman who identified the Cricket

phone records of the victim. (T., p. 283) These phone records were entered into evidence

without objection or further authentication. (T., 283) Detective Countryman used the records to

identify two phone calls made at 11 :36 a.m. One was from the jitney driver's phone to the

victim's phone and the second was from the victim's phone to the jitney driver's phone. (T., pp.

288-289)

The Commonwealth called the jitney driver, Richard Green. A review of his testimony

indicates that he professed little or no recollection of the events of the day. Mr. Green was asked

to review the transcript of a statement that he gave on January 13, 2008, however, after

reviewing the transcript, he testified that it did not really refresh his recollection of the events.

Green acknowledged that he had a cell phone on the date of the incident but testified that he did

not know the number and indicated that the police confiscated his cell phone on the day of the

shooting. (T., pp. 142-143). When asked if the person who he was riding on the date of the

incident used his phone, Green testified, "I carry my cell phone on my console. I don't know if

the individual picked it up or not." (T., p. 142) As a result of Green's testimony, his recorded

statement was identified by Detective Timothy Langan and then played to the jury. (T., pp. 149 -

157). At the conclusion of the statement a stipulation was entered into by Petitioner's trial

counsel as to Green's cell phone number on January 13, 2008. (T., p. 157)

5
 Based on the above evidence, both Petitioner's counsel and the prosecutor argued to the

jury at closing the significance of the various times in relation to Petitioner's presence at the

residence. Petitioner's counsel argued:

"I also mentioned the timeline in this case, and you heard from Detective
Hennessey, who is making contemporaneous notes based on observations, and he
told you that he seen (sic) a black male enter the residence at 11:34, and he
recorded a black male left the residence at 11 :38. Officer Hess testified that the
911 call came in at 10:42. (sic) That is four minutes after the black male left the
residence on the surveillance tape. So I don't know how in the world this
individual could shoot anybody if he had left four minutes prior to the 911 call.
You heard from Dominique Burwell. She told you she called 911 shortly after the
bang, shortly after the shots she is on the phone calling 911." (T ., p. 308)

The prosecutor also discussed the timeline, emphasizing that the phone records were

more accurate, arguing as follows:

"After Bryant Jones called a couple of times from that cell phone, apparently he
didn't get a hold of him at 11:36, Randy calls back to that cell phone and gets a
hold of him. So at 11 :36 we know that he is not in the residence yet because
obviously he wouldn't be calling him from the jitney cell phone if he is inside.
11 :36 he is still outside. I would submit to you he was right outside and said I'm
here, or Randy said, okay, I'm here, come on in. 11:36 is when he gets there. On
Detective Hennessey's report he says 11:34, but like I said, I hope you see,
common sense wise, it is just a two minute mistake by Bart Hennessey. So we
know he enters at 11:36, what you can look at as accurate because it really
doesn't depend on the accuracy of the clock unless the minutes were wrong, but
there is no evidence of that." (T., p. 313)

DISCUSSION

Petitioner now asserts that trial counsel was ineffective by failing to object to the hearsay

testimony of Detective Hennessy regarding the information he received from Detective Steckel.

Specifically, Petitioner asserts that trial counsel,

" ... failed to object to Commonwealth witness Detective Bartley Hennessy's
testimony regarding statements he received from Detective Steckel in connection
with the surveillance video timeline. Due to trial counsel's failure to object,
inadmissible hearsay testimony was admitted, and the Commonwealth was able to
establish a timeline of events which put Petitioner at the victim's residence at

6
 approximately the time of the shooting. Trial counsel was further ineffective for
failing to call Detective Steckel to testify at Petitioner's trial to clarify the glaring
timeline discrepancy of the surveillance footage and for failing to motion this
Hon. Court for a continuance in order to secure Detective Steckel's testimony."
(Petition, p. 24)

In support of his argument, Petitioner attached as Exhibit "A" to his Amended PCRA

Petition a supplemental report of Detective R. Ladley dated January 14, 2008. This report dealt

with the processing of the surveillance videotape and contains the following statement:

"I met with Det. Holman at 3:00 PM. I accompanied Det. Holman to the lab
where he examined the tape. The time and date stamp were not visible on the
tape. I contacted Det. Steckel and requested his assistance to determine event
times on the tape. Det. Steckel's (sic) arrived at the lab and produced notes
indicating that a person exited the residence at 11: 34 AM and left in a gold
colored Jeep." (Exhibit "A" - Amended PCRA Petition) (Emphasis added)

Petitioner contends that if Detective Steckel had been called to testify he would have

testified that a person exited the residence at 11:34 a.m., and not 11:38 a.m., as Detective

Hennessy testified. Petitioner contends that this evidence would have established that he left the

residence eight minutes before the shooting, which he contends occurred immediately before the

911 call was made at 11:42 a.m. This timeline would have supported Defendant's position at

trial that someone else, most likely the victim's brother, Terrance Edwards, actually shot the

victim as the result of an argument or dispute of some nature.2 Consequently, Petitioner argues

that trial counsel's failure to object to Detective Hennessy's hearsay testimony and the failure to

call Detective Steckel to establish the appropriate timeline constituted ineffective assistance

counsel.

2
The argument was made at trial that the motive for Terrence Edwards to shoot his brother was
that Terrence discovered that his brother was a "snitch" or in some manner was cooperating with
investigating authorities. (T., pp. 304-305)
7
 Petitioner also asserts that trial counsel was ineffective in failing to object to the

authentication of the Cricket phone records by Detective Countryman. This claim is based on a

disclaimer attached to the phone records that were produced by Cricket and offered into

evidence. This disclaimer states as follows:

"At the request of the law enforcement agent receiving the following Subpoena
Compliance information, Cricket Communications ("Cricket") provides the
following information electronically in a searchable, manipulable form.
Although Cricket verifies the authenticity of the information attached to this e-
mail as sent, Cricket cannot and will not testify to the authenticity of this
information after it is received by the recipient law enforcement agency. This is
because the attached information electronically sent by Cricket is manipulable.
Consequently, were a Cricket representative called to testify in court, at a
deposition, or by an affidavit about the authenticity of the attached information,
Cricket could not do so. The recipient law enforcement agency is therefore
notified that if called to testify, a Cricket representative would bring a hard copy
of the attached information as an authentic Cricket record." (Amended PCRA
petition, Exhibit B (5))

Petitioner asserts that by failing to require the Cricket phone records to be authenticated by a

designated representative of Cricket, the Commonwealth was able to manipulate the phone

records to establish an inaccurate timeline which placed him at the residence at the time of the

shooting.

Finally, Petitioner asserts that trial counsel was ineffective because he stipulated to the

cell phone number of the jitney driver, Richard Green. Petitioner asserts that this information

was then used to place him at the scene of the shooting.

In order for Petitioner to be entitled to relief on the basis that trial counsel was

ineffective, Petitioner must show by a preponderance of the evidence ineffective 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.

8
Commonwealth v. Brady, 741 A.2d. 758, 763 (Pa. Super. 1999) This standard requires

Petitioner to show: (1) that the claim is of arguable merit; (2) that counsel had no reasonable,

objective basis for his actions; and (3) that, but for the errors or omissions of counsel, there is a

reasonable probability that the outcome of the proceedings would have been different, that is,

that the petitioner was prejudiced by the alleged ineffectiveness of counsel. Commonwealth v.

Kimball, 724 A.2d 326, 333 (1999). Counsel is presumed to be effective, however, and the

burden rests with Petitioner to overcome that presumption. Commonwealthv. Pierce, 527 A.2d

973, 975 (1987), Commonwealth v. Pirela, 580 A.2d 848, 850 (1990), appeal denied, 594 A.2d

658 (1991). If Petitioner fails to meet any one of these three prongs, relief should be denied.

Commonwealth v. Wells, 578 A.2d 27, 32 (Pa. Super. 1990)

In reviewing the evidence in this case, it is clear that Petitioner has failed to establish that

trial counsel was ineffective. Initially it should be noted that Petitioner's argument is premised

on an assumption that is not supported by the record. Petitioner's argument relies on a finding

that the shooting took place immediately before the 911 call was made and that the 911 call was

made at 11 :42 a.m. The record establishes that Officer Hess did not testify that the call was

made at exactly 11:42 a.m. Instead, his testimony was very clear that the time that he gave for

the 911 call was an approximation within a minute or so. In addition, it is also clear that

Petitioner's contention that the record establishes that Dominique Burwell made the 911 call

immediately after the shooting is also inaccurate. Regarding the time of the call, Burwell

testified as follows:

"As I go upstairs, I start looking for something to wear, and then I would say a
couple minutes later, I'm not sure, I'm not exactly sure how much later, but I
heard gunshots, but at the time I didn't think it was gunshots. I thought
something had fell downstairs. Because my little boy came running up the steps
and the only time he runs is when he did something so I'm thinking he did
something because I heard, it was consecutive, boom, boom, boom, and I'm

9
 standing there and then later on I hear Terry, he runs up the steps, and he tells me
hide the kids and call the police." (T., p. 111)

Burwell also testified that while she was on the phone with the 911 operator she remembered that

she had left her daughter downstairs on the couch and, despite the fact that the 911 operator was

telling her not to, she went to get her daughter, after already having hidden her other children.

She testified:

"Me and my children - -I buried them under some clothes in the bedroom and I
remember I left my daughter downstairs on the couch whenever I went upstairs
because I left her on the couch because she was still asleep and I remembered she
was down there." (T., pp. 113-114)

The evidence does not establish that Burwell made the 911 call immediately after the shooting.

When specifically asked on cross-examination how many seconds elapsed between the sounds of

the shooting until the 911 call was made, Burwell testified:

Q. How many seconds elapsed between the sounds of that banging to that 911 call?
Was it mere seconds?
A. "At first, I'm really not getting what he is saying now, I mean, I just seen
him, I'm confused at the time. So whenever I see it was serious I
proceeded to call 911. I'm not sure how much longer it was after that."
Q. It's fair to say if your brother-in-law was shot, you would call 911 pretty
quickly, right?
A. Right.
Q. And that's probably what you did?
A. Right. (T., p. 119)

Given the approximation of the time when the 911 call was received by the police and the

fact that the evidence establishes that there was some time that intervened between the shooting

and the time that Burwell made the call, Petitioner has failed to demonstrate that trial counsel's

failure to object to either the testimony concerning the timeline or the phone records would have

affected the outcome of the trial. Petitioner argues that if Detective Steckel had been called to

testify his testimony would have established conclusively that Petitioner exited the residence at

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11:34 a.m., eight minutes before the shooting and, therefore, someone else had to do the

shooting.' However, there is no conclusive evidence as to exactly when the shooting took place,

given the evidence that certainly some time elapsed between the shooting and the 911 call and

the approximation of when the 911 call was received. Even assuming it was established exactly

when the 911 call was received by reference to the phone records, there was still an

undetermined time gap between the time of the shooting and the time Burwell placed the call.

Therefore, given that Petitioner was identified by Terrence Edwards as being in the residence,

there is no reasonable probability that the outcome of the trial would have been different if it was

shown that the time between Petitioner left the residence and the 911 call was eight minutes, as

opposed to four minutes, or something in between.

As to Petitioner's claim that counsel was ineffective in failing to object to the phone

records, Petitioner has also failed to establish that he was prejudiced by the admission of the

records. At the PCRA hearing, Petitioner testified that the phone records were in direct

contradiction to the information contained in Exhibit "A", the memo by Detective Ladley that

indicated that Detective Steckel' s notes stated that a person exited the residence at 11: 34 a.m. as

opposed to the phone records which the Commonwealth argued established that Petitioner was

still outside the residence at 11 :36 a.m. This discrepancy does not establish that the phone

records were manipulated. Instead, this evidence establishes only that there were inconsistencies

between the timekeeping devices, log clocks or watches that were being used to record the events

that day. Only if the exact sequence of events in the house after the shooting could be

established, as well as the exact time between the shooting and the 911 call, would the exact time

3 The evidence established that no one else was seen entering or leaving the residence from the
time Petitioner exited the residence and left in the gold Jeep and the time the local police
responded to the scene.
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when Petitioner exited the house be of any importance. In addition, the stipulation to Green's

cell phone number was not prejudicial. The evidence establishes that the investigating

detectives took possession of Green's cell phone and obtained the pertinent records regarding the

phone calls made that day. There is no reasonable probability that the stipulation regarding the

cell phone number had any effect on the outcome of the trial.

At the PCRA hearing Petitioner testified that the trial strategy that he expected his

counsel to pursue was to establish the timeline to show that he was not present at the time the

crime was committed. However, trial counsel credibly testified that the timeline was not the basis

of the defense. At the PCRA hearing trial counsel testified as follows:

"To me, the timeline wasn't very compelling. My defense strategy was not that
he wasn't present. Obviously, I had a brother who witnessed him in the residence
allegedly." (T., p. 6)

Counsel also testified:

"The defense strategy was that he was there, but he wasn't there at the time of the
shooting. He was there in close proximity to that. So the timeline was not clear-
cut. So it was vague to me, so I would assume it would be vague to the jury as to
what time he was there and whether he was there when the shooting occurred. So
I didn't see the point of diving into something which was not conclusive. The
timeline was very elusive, if you will, based on the evidence. So based on that,
our defense strategy was that he was there to do a drug deal, and there was an
argument that was taking place between the brothers, and that the brother shot
the other brother because he was a quote, unquote snitch. That was the defense
strategy. So there was no need for me to say he wasn't there. He was there, but he
wasn't there at the time of the shooting. That was the defense strategy." (T.,pp. 7-
8).

Counsel also testified that he met with Petitioner numerous times prior to trial and they agreed on

the strategy to be pursued in his defense, which included Petitioner testifying to the events that

he witnessed when he was in the residence, particularly the argument that was occurring between

the victim and his brother. Counsel testified:

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 Q. So when you say it's our defense strategy, it was you and who else?
A. Mr. Jones and I met down the jail several times, often, reviewed the
case together, and agreed that was our defense strategy.
Q. How were you planning on presenting your defense strategy with respect to
your theory of the case?
A. Listing all the points that I needed out of the Commonwealth's case, which I
had did. The brother testified that snitches get killed. That was out of his own
mouth. And I needed my client to corroborate what happened during the time
that he arrived at the residence, because we have two live witnesses put him
at the scene and a fingerprint inside the residence." (T ., p. 8) (Emphasis
added)4

Trial counsel also credibly testified that the defense strategy was affected by the fact that

Petitioner had indicated that he was going to testifying in his own defense, but then elected not to

do so. Counsel testified:

"I pleaded with Mr. Jones during the lunch break that there were loose ends that
needed to be tied up and the only person I had available to answer those questions
is him, but I cannot force him to testify." (T. 9)

Petitioner acknowledged that he initially indicated that he would testify but then decided not to

(T., p. 30) The evidence as a whole, as previously outlined in the 1925(b) opinion of July 19,

2012 filed at the time of Petitioner's appeal, clearly established that Petitioner was at the

residence within minutes of the 911 call being placed. Petitioner's testimony contradicting trial

counsel that his entire defense was premised on the timeline is not credible. Counsel pursued a

reasonable strategy that included questioning the timeline, but not premising the entire defense

on it, given the uncertainties of establishing facts sufficient to establish a certain timeline.

Counsel reasonably believed that Defendant would testify concerning an argument between the

victim and his brother which would be direct evidence to support the argument that it was the

brother who was the killer. Absent Petitioner's testimony, counsel was left to make that

4
The record establishes that Petitioner's fingerprint was actually taken from the passenger side
door handle of the gold Jeep. (T., p. 280)
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 argument based on circumstantial evidence and, yet, still argue that Petitioner left the residence

four minutes before the shooting occurred. Based on all the foregoing there is no evidence to

find that trial counsel was ineffective and Petitioner's Amended PCRA Petition was

appropriately dismissed.

TODD,J.

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