J-S24035-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRIAN DANIELS :
:
Appellant : No. 1131 EDA 2018
Appeal from the PCRA Order April 2, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0012667-2011
BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: Filed June 10, 2019
Appellant Brian Daniels appeals from the order entered by the Court of
Common Pleas of Philadelphia County denying Appellant’s petition pursuant
to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.
Counsel has filed a petition to withdraw and an accompanying brief. After
careful review, we affirm the PCRA court’s order and grant counsel’s petition
to withdraw.
On direct appeal, the trial court summarized the factual background of
this case as follows:
On July 10, 2011, an argument occurred between neighbors
Latisha Dudley and Thea Knight on the 4500 block of Hurley
Street. Latisha Dudley and her daughter confronted Thea Knight
about a parking ticket Dudley received, blaming Knight for the
ticket and insisting she pay it. Knight then went back inside her
house and called her boyfriend, Troy Taylor (a.k.a. Lionel Tyson).
Taylor returned home and also argued with Dudley. Dudley
threatened to break the windows and slash the tires of Taylor and
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* Former Justice specially assigned to the Superior Court.
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Knight’s van. Taylor threatened to retaliate by pouring sugar in
her gas tank.
The following day, Taylor and Knight returned home from a
doctor’s appointment to find their van had been vandalized. A tire
had been slashed, the front passenger window was broken, and
the radio console was missing. Knight brought her children inside,
and Taylor walked to the end of the block to confront Appellant,
Dudley’s boyfriend. In the course of the confrontation, Appellant
attempted to hit Taylor in the face, but missed. Taylor then swung
at and hit Appellant. The fight was quickly broken up by other
men in the neighborhood, and Taylor returned to his van to inspect
the damages. Knight watched the altercation from her house and
saw Appellant walking back to his house with blood around his
eye. When Appellant exited the house again[,] he was holding a
black 9-millimeter [(9-mm)] gun. Taylor testified that as
Appellant was walking down the front steps, he was loading bullets
into the gun. Appellant lifted the gun, took a step towards Taylor,
and then fired at Taylor. Taylor ducked behind the van and moved
around it to avoid [being] shot. Appellant followed him around
the van and fired his gun two more times at Taylor. Taylor was
not struck by any of the bullets. After firing three shots, Appellant
returned to his house. Knight witnessed this from her home
across the street and called the police.
Officer William Stephan and his partner responded to the
report of a shooting on the 4500 Block of Hurley Street at 6:45
p.m. Taylor was still on the street and met the officers to speak
with them. Officer Stephan testified that when they initially spoke
to Taylor, he was “very frazzled and excited.” Taylor described
the incident and the individual who had shot at him. Officer
Stephan found two fired shell casings on the top of Taylor’s van,
and observed damage to the vehicle. Upon learning that Appellant
had returned to his house following the shooting, Officer Stephan
and his partner secured the house. Officer Stephan called his
supervisor and suggested the premises be held for a barricade.
SWAT officers arrived at the scene and began establishing a
barricade around Appellant’s house at about 7:00 p.m. At
approximately 7:35 p.m., they entered the building. However,
nobody was found inside the home at that time. No weapons were
found inside the home by SWAT.
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Detective Michael Alers was assigned to investigate the
shooting and also arrived at the scene at about 7:00 that evening.
He took photographs of the scene and recovered fired 9-[mm]
casings. In the course of his investigation into the shooting,
Detective Alers also applied for two search warrants: one for a
2000 Ford SUV registered to Latisha Dudley, and another for a
Lexus registered to Appellant. From the vehicle registered to
Latisha Dudley, Detective Alers recovered the vehicle’s insurance
information, which listed both Ms. Dudley’s and Appellant’s
names, the vehicle registration, several traffic citations, and a box
of ammunition. The box of ammunition contained eleven live
rounds and ten capped rounds (also described as blanks). The
box was labeled “38 special” but contained “assorted ammo”
according to Detective Alers.
At trial, Appellant presented an alibi witness, Thomas
Daniel, who worked with Appellant at the time of the shooting.
Mr. Daniel also testified that he has been dating Appellant’s
mother for “fifteen or so years.” Thomas Daniel works in air
conditioning and refrigeration, and at the time of the shooting he
had been working with Appellant and helping him secure a job in
the same field. At trial, Mr. Daniel testified that on the day the
shooting occurred, Appellant was in the Bronx, New York,
accompanying him on several jobs. He referred to two job tickets,
which listed work being done on July 11, 2011, from 3:00 to 5:35
in the afternoon. Mr. Daniel testified that Appellant was with him
during this time period in the Bronx. Mr. Daniel also testified that
he did not see Appellant after 6:45 that evening until he woke up
the next morning. Latisha Dudley, Appellant’s girlfriend, also
testified that she had dropped him off at the train station the day
before the shooting to go to New York.
Mr. Daniel was interviewed by Detective Alers on September
10, 2013. At the time he stated he had no documentation to
reflect that Appellant had made repairs or been present in New
York that day. He stated that since he worked with several people
who were “off the books,” he did not keep attendance records.
Latisha Dudley also gave a statement to Detective Alers on
September 13, 2013. She had not spoken to the detective about
taking Appellant to the train station prior to this statement.
Trial Court Opinion (T.C.O.), 9/15/15, at 3-6 (citations to the record omitted).
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On July 11, 2014, the trial court convicted Appellant of aggravated
assault, simple assault, recklessly endangering another person (REAP),
possession of an instrument of crime (PIC), carrying a firearm without a
license, carrying a firearm in public in Philadelphia, and possession of a firearm
by a person prohibited. On December 11, 2014, the trial court imposed an
aggregate term of four to eight years’ imprisonment to be followed by five
years’ probation. Appellant filed a timely post-sentence motion, which was
denied by operation of law. On August 9, 2016, this Court affirmed the
judgment of sentence. Appellant did not file a petition for allowance of appeal
with the Supreme Court.
On December 23, 2016, Appellant filed a pro se PCRA petition. The
PCRA court appointed Appellant counsel, who filed an amended petition on
Appellant’s behalf. On February 7, 2018, the PCRA court issued notice of its
intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907.
Appellant did not respond to the Rule 907 notice. In an order dated March
28, 2018 and docketed April 2, 2018, the PCRA court dismissed Appellant’s
petition. This timely appeal followed. Appellant’s counsel filed notice of his
intent to file an Anders/McClendon brief pursuant to Pa.R.A.P. 1925(c)(4) in
lieu of a statement of errors complained of on appeal.
Our standard of review is as follows:
When reviewing the denial of a PCRA petition, we must determine
whether the PCRA court's order is supported by the record and
free of legal error. Generally, we are bound by a PCRA court's
credibility determinations. However, with regard to a court's legal
conclusions, we apply a de novo standard.
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Commonwealth v. Johnson, 635 Pa. 665, 139 A.3d 1257, 1272 (2016)
(quotation marks and quotations omitted).1
As an initial matter, we must first review counsel’s petition to withdraw.
Counsel petitioning to withdraw from PCRA representation must
proceed ... under [Commonwealth v. Turner, 518 Pa. 491, 544
A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213
(Pa.Super. 1988)] and ... must review the case zealously.
Turner/Finley counsel must then submit a “no-merit” letter to
the trial court, or brief on appeal to this Court, detailing the nature
and extent of counsel's diligent review of the case, listing the
issues which petitioner wants to have reviewed, explaining why
and how those issues lack merit, and requesting permission to
withdraw.
Counsel must also send to the petitioner: (1) a copy of the “no
merit” letter/brief; (2) a copy of counsel's petition to withdraw;
and (3) a statement advising petitioner of the right to proceed pro
se or by new counsel.
Where counsel submits a petition and no-merit letter that ...
satisfy the technical demands of Turner/Finley, the court — trial
court or this Court — must then conduct its own review of the
merits of the case. If the court agrees with counsel that the claims
are without merit, the court will permit counsel to withdraw and
deny relief.
Commonwealth v. Doty, 48 A.3d 451, 454 (Pa.Super. 2012) (quoting
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007)).
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1 We note that any PCRA petition, “including a second or subsequent petition,
shall be filed within one year of the date the judgment becomes final.” 42
Pa.C.S.A. § 9545(b)(1). Appellant’s sentence became final on September 8,
2016, when the thirty-day appeal period expired for seeking review with our
Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3) (providing that a “judgment
becomes final at the conclusion of direct review, including discretionary review
in the Supreme Court of the United States and the Supreme Court of
Pennsylvania, or at the expiration of time for seeking the review”); Pa.R.A.P.
1113(a). Thus, Appellant filed a timely petition on December 23, 2016.
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We note that defense counsel has filed his petition to withdraw on the
basis of frivolity pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967). Although Anders briefs are filed by counsel
who wish to withdraw on direct review, we will accept counsel’s Anders brief
in lieu of a Turner-Finley letter, as an Anders brief provides greater
protection to criminal defendants. See Commonwealth v. Fusselman, 866
A.2d 1109, 1111 n.3 (Pa.Super. 2004).
After reviewing the record and counsel’s petition to withdraw, we find
that PCRA counsel has complied with the technical requirements of Turner
and Finley, supra. In his appellate brief, PCRA counsel detailed the nature
and extent of his review, listed numerous issues of arguable merit, and
explained why he believed each claim was frivolous. Counsel indicated that
after his own independent review of the record, he could not identify any
meritorious issues that he could raise on Appellant’s behalf. Moreover,
counsel attached his letter to Appellant specifically indicating that he believed
that the appeal was wholly frivolous for the reasons set forth in his brief and
notifying him of his right to raise additional points for consideration by
proceeding pro se or with the assistance of privately retained counsel. See
Commonwealth v. Muzzy, 141 A.3d 509, 511 (Pa.Super. 2016).
We now consider the issues PCRA counsel presents in his brief to
ascertain whether any of the claims entitles Appellant to relief. PCRA counsel
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raises eleven claims of the ineffectiveness of counsel.2 In reviewing claims of
ineffectiveness of counsel, we are guided by the following principles:
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. See Commonwealth v.
Pierce, 515 Pa. 153, 527 A.2d 973, 975–76 (1987);
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). The PCRA court may deny an
ineffectiveness claim if “the petitioner's evidence fails to
meet a single one of these prongs.” Commonwealth v.
Basemore, 560 Pa. 258, 744 A.2d 717, 738 n.23 (2000)....
Because courts must presume that counsel was effective, it
is the petitioner's burden to prove otherwise. See Pierce,
supra; Commonwealth v. Holloway, 559 Pa. 258, 739
A.2d 1039, 1044 (1999).
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2 We note PCRA counsel’s brief does not comply with two of our rules of
appellate procedure. While PCRA counsel acknowledges in the discussion
portion of his brief that Appellant raised eleven ineffectiveness claims in his
petitions, PCRA counsel’s statement of the issues presented in the appellate
brief does not list any of these specific arguments. Our rules of appellate
procedure provide that “the statement of the questions involved must state
concisely the issues to be resolved, expressed in the terms and circumstances
of the case but without unnecessary detail.” Pa.R.A.P. 2116(a).
Moreover, counsel does not provide an organized discussion of
Appellant’s numerous claims, but reviews them in a random order in one
analysis section without defined sections for each claim. Our rules of appellate
procedure specifically require that the argument section of the brief “shall be
divided into as many parts as there are questions to be argued; and shall have
at the head of each part--in distinctive type or in type distinctively displayed-
-the particular point treated therein, followed by such discussion and citation
of authorities as are deemed pertinent.” Pa.R.A.P. 2119. Nevertheless, as
PCRA counsel’s non-compliance with the rules of appellate procedure does not
prevent this Court from conducting meaningful review of the appeal, we will
review counsel’s appellate brief in this case.
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[Commonwealth v. Natividad, 595 Pa. 188, 207–208, 938 A.2d
310, 321 (2007);] see also Commonwealth v. Hall, 582 Pa.
526, 537, 872 A.2d 1177, 1184 (2005) (stating an appellant's
failure to satisfy any prong of the Pierce ineffectiveness test
results in a failure to establish the arguable merit prong of the
claim of ineffectiveness).
Commonwealth v. Johnson, 179 A.3d 1105, 1114 (Pa.Super. 2018).
First, Appellant claimed trial counsel was ineffective in failing to litigate
a motion to dismiss based on Pa.R.Crim.P. 600.
In evaluating Rule [600] issues, our standard of review of a trial
court's decision is whether the trial court abused its discretion.
Judicial discretion requires action in conformity with law, upon
facts and circumstances judicially before the court, after hearing
and due consideration. An abuse of discretion is not merely an
error of judgment, but if in reaching a conclusion the law is
overridden or misapplied or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill will,
as shown by the evidence or the record, discretion is abused.
The proper scope of review is limited to the evidence on the record
of the Rule [600] evidentiary hearing, and the findings of the
[trial] court. An appellate court must view the facts in the light
most favorable to the prevailing party.
Additionally, when considering the trial court's ruling, this Court is
not permitted to ignore the dual purpose behind Rule [600]. Rule
[600] serves two equally important functions: (1) the protection
of the accused's speedy trial rights, and (2) the protection of
society. In determining whether an accused's right to a speedy
trial has been violated, consideration must be given to society's
right to effective prosecution of criminal cases, both to restrain
those guilty of crime and to deter those contemplating it.
However, the administrative mandate of Rule [600] was not
designed to insulate the criminally accused from good faith
prosecution delayed through no fault of the Commonwealth.
So long as there has been no misconduct on the part of the
Commonwealth in an effort to evade the fundamental speedy trial
rights of an accused, Rule [600] must be construed in a manner
consistent with society's right to punish and deter crime. In
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considering [these] matters..., courts must carefully factor into
the ultimate equation not only the prerogatives of the individual
accused, but the collective right of the community to vigorous law
enforcement as well.
Commonwealth v. Leaner, 202 A.3d 749, 765–66 (Pa.Super. 2019)
(quoting Commonwealth v. Armstrong, 74 A.3d 228, 234–35 (Pa.Super.
2013)).
Our Supreme Court has summarized requirements of Rule 600 as
follows:
By the terms of Rule 600, the Commonwealth must bring a
defendant to trial within 365 days from the date upon which a
written criminal complaint is filed. Pa.R.Crim.P. 600(A)(2)(a).
However, the Rule 600 run date may be adjusted pursuant to the
computational directives set forth in Subsection (C) of the Rule.
For purposes of the Rule 600 computation, “periods of delay at
any stage of the proceedings caused by the Commonwealth when
the Commonwealth has failed to exercise due diligence shall be
included in the computation of the time within which trial must
commence.” Id. 600(C)(1). “Any other periods of delay,”
including those caused by the defendant, “shall be excluded from
the computation.” Id. When considering a Rule 600 motion, the
court must identify each period of delay and attribute it to the
responsible party, then adjust the 365-day tally to arrive at the
latest date upon which the Commonwealth may try the defendant.
Absent a demonstration of due diligence, establishing that the
Commonwealth has done “everything reasonable within its power
to guarantee that [the] trial begins on time,” Commonwealth v.
Matis, 551 Pa. 220, 710 A.2d 12, 17 (1998), the Commonwealth's
failure to bring the defendant to trial before the expiration of the
Rule 600 time period constitutes grounds for dismissal of the
charges with prejudice. See Pa.R.Crim.P. 600(D)(1).
Commonwealth v. Barbour, ___Pa.___, 189 A.3d 944, 947 (2018).
Moreover, this Court has held that:
For purposes of determining the time within which trial must be
commenced pursuant to paragraph (A), paragraph (C)(1) makes
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it clear that any delay in the commencement of trial that is not
attributable to the Commonwealth when the Commonwealth has
exercised due diligence must be excluded from the computation
of time. Thus, the inquiry for a judge in determining whether there
is a violation of the time periods in paragraph (A) is whether the
delay is caused solely by the Commonwealth when the
Commonwealth has failed to exercise due diligence. If the delay
occurred as the result of circumstances beyond the
Commonwealth's control and despite its due diligence, the time is
excluded. In determining whether the Commonwealth has
exercised due diligence, the courts have explained that due
diligence is fact-specific, to be determined case-by-case; it does
not require perfect vigilance and punctilious care, but merely a
showing the Commonwealth has put forth a reasonable effort.
Delay in the time for trial that is attributable to the judiciary may
be excluded from the computation of time. However, when the
delay attributable to the court is so egregious that a constitutional
right has been impaired, the court cannot be excused for
postponing the defendant's trial and the delay will not be
excluded.
Pa.R.Crim.P. 600, cmt. (citations, quotation marks and brackets omitted). It
is well-established “that the Commonwealth cannot control the schedule of
the trial courts and that therefore [j]udicial delay can support the grant of an
extension of the Rule [600] rundate.” Commonwealth v. Trippett, 932 A.2d
188, 198 (Pa.Super. 2007) (quotations and citations omitted); see also
Commonwealth v. Preston, 904 A.2d 1, 14 (Pa.Super. 2006) (en banc)
(finding judicial delay was not attributable to the prosecution where “the
Commonwealth was prepared to commence trial prior to the expiration of the
mandatory period but the court was unavailable because of scheduling
difficulties and the like”) (citation omitted).
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In this case, the criminal complaint was filed on November 16, 2011.
Thus, Appellant’s mechanical run date was November 16, 2012. Although
Appellant’s trial did not commence until July 29, 2014, which was well beyond
the mechanical run date, the docket shows that the extension of the run date
was substantially the result of defense requests for continuation, joint
requests for continuation, and judicial delay caused by a busy court schedule.3
See also Commonwealth v. Peterson, 19 A.3d 1131, 1137 (Pa.Super.
2011) (finding that a joint continuance is excludable delay). As such, there is
no merit to Appellant’s claim that counsel was ineffective in failing to file a
Rule 600 claim.
In the second and third claims, Appellant asserted that trial counsel was
ineffective in failing to challenge the trial court’s pre-trial ruling that limited
the scope of the defense’s cross-examination of certain prosecution witnesses
with the fact that Taylor was arrested for shooting Appellant’s girlfriend,
Latisha Dudley, just hours after the instant offense.
However, our review of the record reveals that counsel obtained the trial
court’s permission to question Taylor and Knight about the open charges
against Taylor for the subsequent shooting of Dudley. N.T., 7/29/14, at 15.
Trial counsel did question Taylor and Knight about the second shooting and
the circumstances of Taylor’s arrest. Per the Commonwealth’s request, the
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3 It appears that Appellant can only attribute two delays to Commonwealth
requests for continuances from October 3, 2011 to November 17, 2011 and
from November 22, 2013 to December 6, 2013.
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trial court limited further examination of Taylor as to avoid areas in which
Taylor would invoke his Fifth Amendment privilege against self-incrimination.
There is no arguable merit to Appellant’s claim that trial counsel did not seek
to question Taylor and Knight about the second shooting.
Moreover, Appellant has not shown how trial counsel’s failure to seek
further cross-examination of these witnesses resulted in any prejudice, such
that the outcome of his proceedings would have been different. See
Johnson, supra. Evidence that Taylor subsequently shot at Appellant’s
girlfriend does not advance Appellant’s theory that the prosecution witnesses
fabricated their account that Appellant committed the instant offenses.
Rather, Taylor’s prior identification of Appellant as his shooter on July 10, 2011
supports a stronger inference that he had motive to shoot Appellant’s
girlfriend hours later on July 11, 2011. As such, the PCRA court correctly
dismissed this claim of ineffectiveness.
Fourth, Appellant claimed trial counsel was ineffective in failing to cross-
examine Taylor as to why he failed to name Appellant as the shooter when
initially questioned by police, but instead, merely gave a description of
Appellant told police where Appellant lived. We note that the trial court was
made aware of this fact as one of the responding officers testified that Taylor
did not initially give Appellant’s name to the police. N.T. 7/30/14, at 53-55,
66. While Appellant did not have the opportunity to ask Taylor why he did not
initially name him as the shooter, Appellant has not shown that he was
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prejudiced, that is, that but for this omission, that the outcome of his
proceedings would have been different. See Johnson, supra.
Fifth, Appellant argued that trial counsel was ineffective in failing to
move for a mistrial based on a statement made by Detective Alers. This
testimony was elicited when the prosecutor was discussing the fact that while
eyewitnesses had testified that Appellant had shot his firearm three times, the
police only discovered two fired cartridge casings at the scene. After the
prosecutor asked Detective Alers if it was a common occurrence not to find all
the cartridge casings at the crime scene, Detective Alers confirmed that he
had experienced that situation several hundred times. He also discussed an
unrelated incident where he was qualified to fire his weapon and one casing
inadvertently ended up his pant pocket. N.T., 7/30/14, at 94-95.
However, our courts have emphasized that “[m]istrials should be
granted only when an incident is of such a nature that its unavoidable effect
is to deprive appellant of a fair trial.” Commonwealth v. Johnson, 572 Pa.
283, 306, 815 A.2d 563, 576 (2002). We cannot see how this comment
caused Appellant prejudice such that the outcome of his proceeding would
have been different. Moreover, in a bench trial, the trial court, sitting as fact
finder “is presumed to know the law, ignore prejudicial statements, and
disregard inadmissible evidence.” Commonwealth v. McFadden, 156 A.3d
299, 309 (Pa.Super. 2017) (quoting Commonwealth v. Smith, 97 A.3d 782,
788 (Pa.Super. 2014)). Given these principles, we find that the extreme
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remedy of a mistrial was not warranted in this case based on Detective Alers’s
statement.
Sixth, Appellant asserts that counsel was ineffective in failing to object
to Taylor’s testimony that Appellant started the initial confrontation by
swinging his fist at Taylor. However, even assuming arguendo that Appellant
is correct in alleging that Taylor was the initial aggressor, this fact alone does
not establish a valid self-defense claim for Appellant as the evidence showed
Appellant retreated inside his home to retrieve a gun and returned to fire
several shots at Taylor. See 18 Pa.C.S.A. 505. As the disputed fact in no
way proves that Appellant was justified to respond to Taylor with deadly force,
we cannot find trial counsel was ineffective for failing to object to Taylor’s
testimony.
Seventh, Appellant argues that trial counsel was ineffective in failing to
file a suppression motion arguing that the box of .38 caliber ammunition found
in Latisha Dudley’s vehicle was inadmissible. However, the record shows that
trial counsel did file a motion to suppress all evidence seized from this vehicle,
but the trial court subsequently denied the suppression motion. As a result,
this ineffectiveness claim has no merit.
Moreover, Appellant challenged the trial court’s denial of his suppression
motion on direct appeal. This Court, after addressing the merits of Appellant’s
claim, found the affidavit of probable cause was sufficient to justify the search
warrant for Dudley’s vehicle. “[A] petitioner cannot obtain post-conviction
review of claims previously litigated on appeal by alleging ineffective
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assistance of prior counsel and presenting new theories of relief to support
previously litigated claims.” Commonwealth v. Bracey, 568 Pa. 264, 795
A.2d 935, 939 n. 2 (2001) (citing Commonwealth v. Porter, 556 Pa. 301,
728 A.2d 890, 896 (1999)). As such, Appellant's previously litigated claim is
not cognizable under the PCRA.
Eighth, Appellant alleged that trial counsel was ineffective for failing to
object to hearsay testimony from Detective Alers that an anonymous officer
told him that Appellant had fled the scene in a 2000 Ford SUV. Our review of
the record reveals that Detective Alers testified that he had already begun
investigating the scene, when Dudley pulled up in the SUV. He indicated that
another officer had told him that “the SUV was involved in the incident, that
[Appellant] had fled inside this SUV.” N.T. 7/29/14, at 30.
However, “it is elemental that, an out of court statement which is not
offered for its truth, but to explain the witness' course of conduct is not
hearsay.” Commonwealth v. Carson, 590 Pa. 501, 567, 913 A.2d 220, 258
(2006) (citation omitted). Detective Alers made this comment in explaining
how he came in contact with Latisha Dudley at the crime scene and confirmed
that he did not use the unidentified officer’s statement in seeking a warrant
to search the SUV. As Detective Alers’s statement was admitted to show his
course of conduct, and not for its truth, it was not hearsay. As a result, the
PCRA court did not err in denying this ineffectiveness claim.
In his ninth claim, Appellant asserts that counsel was ineffective for
failing to prepare alibi witness, Thomas Daniel, for trial. As noted above,
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Thomas Daniel, who has been dating Appellant’s mother for approximately
fifteen years, testified that he works in air conditioning and refrigeration and
was on the job in New York with Appellant at the time of the shooting. When
initially interviewed by Detective Alers in September 2013, Daniel indicated
that there was no documentation to show that Appellant was working with him
in New York on the day of the shooting. Daniel then explained that he did
not keep attendance records as several workers were “off the books.” N.T.
Trial, 7/29/14, at 118.
While Appellant baldly asserts that trial counsel failed to prepare Daniel
to testify, he offers no additional detail to argue how counsel’s performance
was deficient. Rather, he appears to be unsatisfied with the PCRA court’s
decision to find Daniel’s testimony not credible. However, “[a] PCRA court's
credibility findings are to be accorded great deference, and where supported
by the record, such determinations are binding on a reviewing court.”
Commonwealth v. Treiber, 632 Pa. 449, 465, 121 A.3d 435, 444 (2015)
(citation omitted). As such, the PCRA court did not err in denying this claim.
Tenth, Appellant claims trial counsel was ineffective in failing to produce
corroborating evidence to support his alibi, including, inter alia, Appellant’s
cell phone records and the testimony of Daniels’s boss. We first note that
Appellant did not provide his phone records to the PCRA court and has not
determined what the phone records would show or argued how such records
would support the defense. Even assuming Appellant’s phone records
reflected that his phone was in New York at some point, they would not
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conclusively prove that Appellant could not have been in Philadelphia on the
night of the shooting.
With respect to Appellant’s claim that trial counsel should have secured
the testimony of Daniel’s boss to confirm Appellant’s alibi, it is well-established
that “[i]n order to demonstrate counsel's ineffectiveness for failure to call a
witness, a petitioner must prove that “the witness existed, the witness was
ready and willing to testify, and the absence of the witness' testimony
prejudiced petitioner and denied him a fair trial.” Commonwealth v.
Stahley, 201 A.3d 200, 211 (Pa.Super. 2018) (quoting Commonwealth v.
Luster, 71 A.3d 1029, 1047 (Pa.Super. 2013) (citations omitted)). However,
Appellant has not offered any evidence as to the identity of Daniel’s boss or
asserted that he was willing to testify on Appellant’s behalf. In fact, Daniel
refused to identify his boss and admitted that his boss would likely be unwilling
to talk to detectives or testify on Appellant’s behalf. N.T., 7/29/14, at 147,
150-151. As such, this ineffectiveness claim fails.
In his final claim, Appellant contends that trial counsel was ineffective
in failing to produce expert testimony to challenge the testimony of the crime
scene officers and eyewitnesses. In addition to the aforementioned precedent
set forth in Stahley, we note the following:
“[w]hen a defendant claims that some sort of expert testimony
should have been introduced at trial, the defendant must
articulate what evidence was available and identify the witness
who was willing to offer such evidence.” Commonwealth v.
Williams, 537 Pa. 1, 29, 640 A.2d 1251, 1265 (1994) citing
Commonwealth v. Holloway, 524 Pa. 342, 572 A.2d 687
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(1990). This is consistent with our Supreme Court's previous
mandate that to justify an evidentiary hearing with respect to
assertions of ineffectiveness of trial counsel, it is required that an
offer of proof be made that alleges sufficient facts upon which a
reviewing court can conclude that trial counsel may have been
ineffective. Commonwealth v. Durst, 522 Pa. 2, 5, 559 A.2d
504, 505 (1989). Claims of ineffectiveness of trial counsel cannot
be considered in a vacuum. Id.
Commonwealth v. Steward, 775 A.2d 819, 831-832 (Pa.Super. 2001).
Moreover, “[t]he mere failure to obtain an expert witness is not
ineffectiveness. Appellant must demonstrate that an expert witness was
available who would have offered testimony designed to advance appellant's
cause.” Id. at 832 (citation omitted).
Beyond his bald assertion that trial counsel should have presented a
ballistics expert, Appellant did not articulate what evidence was available,
identify an expert willing to testify on Appellant’s behalf, or explain how such
testimony would have advanced his cause. As a result, Appellant’s claim is
based on pure speculation. As such, Appellant failed to demonstrate that this
particular claim of trial counsel's ineffectiveness is of arguable merit.
Accordingly, we conclude that the PCRA court did not err in dismissing
Appellant’s petition, which does not contain any non-frivolous issues of
arguable merit. We, therefore, grant counsel’s petition to withdraw and affirm
the PCRA court’s order dismissing Appellant’s petition.
Petition to Withdraw as Counsel granted. Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/10/2019
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