Com. v. Washington, Y.

J-S16039-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
YUSEF WASHINGTON, :
:
Appellant : No. 1012 EDA 2018

Appeal from the PCRA Order March 16, 2018
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008855-2008

BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: Filed: April 30, 2020

Yusef Washington (“Washington”) appeals from the Order denying his

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1

We affirm.

In a prior appeal, this Court set forth the relevant history of this case as

follows:

[On t]he morning of June 7, 2006, there were two rival
gangs located in the area of 11th and Warnock Streets,
Philadelphia. [Washington], Braheem Burke [(“Burke”)] and
Rachman Jenkins [(“Jenkins”)] were in one [group], while Eric
Carter (“Carter”) and Keith McClain [(“McClain”)] belonged to a
second one. Jenkins and McClain started to argue when Burke
sucker-punched Carter while Carter was speaking on his cell
phone with his friend, Niall Saracini [(“Saracini”)]. A police car
passed the area, and the two rival groups ceased their fight.
Carter and McClain then left the area and walked to Carter’s home,
where they told [] Carter’s brother, Charles Carter (Carter and

____________________________________________

1 42 Pa.C.S.A. §§ 9541-9546.
J-S16039-20

Charles Carter collectively referred to as “the Carters”), about the
incident.

Carter and McClain, accompanied by Charles Carter, then
returned to the area of 11th and Warnock Streets. Meanwhile,
Saracini, who had been on the cell phone with [Carter] when
[Carter] was punched, arrived at the scene in a[ Chevrolet]
Impala. The Carters and McClain intended to engage in a fistfight
with the opposing [group]. To that end, [] Carter punched
Jenkins. In response, [Washington] and Burke each pulled out a
gun and began to fire shots at the Carters and Saracini, who were
all located near the Impala, and also at McClain, who was fleeing.

Charles Carter was shot in the head and died the following
day. Saracini, who also died, was shot in the back of the neck,
left shoulder blade, upper right back, and left arm. The wounds
in his back were fired from a distance of two to three feet. []
Carter remained unwounded as he hid in the Impala, which was
bullet ridden. McClain, who survived, was shot once.

[] Carter testified at trial and stated that no one in his group
was armed. While [Carter] refused to identify [Washington] and
Burke as the shooters at trial, his preliminary hearing testimony
[identifying Washington] and Burke as the perpetrators of the
shooting was presented at trial, as was an identical, verbatim
statement [that Carter] gave to police immediately following the
incident. Philadelphia Detective Michael Walter established that
[Washington] fled the jurisdiction after the murders. For several
months, the entire Philadelphia [P]olice [D]epartment searched
for [Washington] in the Philadelphia area, to no avail. Area
newspapers contained articles indicating that [Washington] was a
fugitive and asking for assistance in locating him. Almost two
years after the crimes, on April 12, 2008, [Washington] was
arrested in North Carolina.

Based on this proof, [Washington] was convicted of first-
degree murder in connection with the deaths of Charles Carter
and [] Saracini[,] … [the] aggravated assault of [] Carter and []

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J-S16039-20

McClain[,] as well as conspiracy and possession of an instrument
of crime….[2, 3]

Commonwealth v. Washington, 62 A.3d 462 (Pa. Super. 2012)

(unpublished memorandum at 1-3) (footnotes added). The trial court

imposed the mandatory sentence of life in prison. This Court subsequently

affirmed Washington’s judgment of sentence, after which the Pennsylvania

Supreme Court denied allowance of appeal. See id. (unpublished

memorandum at 9), appeal denied, 69 A.3d 602 (Pa. 2013).

On April 7, 2014, Washington filed a timely, pro se, PCRA Petition. The

PCRA court appointed counsel, who filed an Amended PCRA Petition and

Supplements to the Amended PCRA Petition. Following the issuance of a

Pa.R.Crim.P. 907 Notice to Washington, who filed responses to the Notice, the

PCRA court denied the Petition without an evidentiary hearing. Thereafter,

Washington filed the instant timely appeal, followed by a court-ordered

Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.

Washington presents the following claims for our review:

[1. Whether] Kevin Smith’s (“Smith”) and Larry Polk’s (“Polk”)
statements and non-identifications of [] Washington either
constitute newly-discovered facts or [whether] trial counsel [was
ineffective for] fail[ing] to identify, interview, and present their
observations and non-identifications at [] Washington’s trial[?]
____________________________________________

2 See 18 Pa.C.S.A. §§ 2502(a), 2702, 903, 901.

3In September 2008, a jury convicted Burke of two counts of third-degree
murder and possession of an instrument of a crime. See 18 Pa.C.S.A.
§§ 2502(c), 907.

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J-S16039-20

[2. Whether] [t]rial counsel was ineffective for failing to develop
and present photographic evidence to the jury undermining []
Carter’s unrecorded interrogation statement[?]

[3. Whether] [t]rial counsel was ineffective for not requesting a
Kloiber[4] instruction[?]

[4. Whether] [t]he cumulative impact of trial counsel’s errors
rendered [] Washington’s trial fundamentally unfair[?]

[5. Whether] [t]rial counsel was ineffective for misrepresenting
the plea negotiations to [] Washington[?]

[6. Whether] [t]he PCRA court erred by not granting an
evidentiary hearing[?]

Brief for Appellant at 3 (footnote added).

As our Supreme Court has directed,

[u]pon reviewing an order in a PCRA matter, we must determine
whether the findings of the PCRA court are supported by the
record and whether the court’s legal conclusions are free from
error. The findings of the PCRA court and the evidence of record
are viewed in a light most favorable to the prevailing party. The
PCRA court’s credibility determinations, when supported by the
record, are binding; however, this court applies a de novo
standard of review to the PCRA court’s legal conclusions. We must
keep in mind that the petitioner has the burden of persuading this
Court that the PCRA court erred and that such error requires relief.
Finally, this Court may affirm a valid judgment or order for any
reason appearing of record.

Commonwealth v. Montalvo, 205 A.3d 274, 286 (Pa. 2019) (citations

omitted).

____________________________________________

4 See Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).

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J-S16039-20

Washington first argues that the PCRA court improperly rejected his

claim of newly-discovered evidence, which was based upon the eyewitness

accounts of the incident by Smith and Polk. Brief for Appellant at 27.

According to Washington, Smith and Polk came forward shortly after seeing

an “Investigation Notice” posted in the neighborhood in 2016. Id. at 28. Both

told PCRA counsel that they would have testified at Washington’s trial, had

they been interviewed and subpoenaed. Id. at 28. In this regard, Washington

includes a claim of ineffective assistance of trial counsel for not interviewing

and subpoenaing Smith and Polk for trial. Id.

Washington explains that at trial, Carter and McClain both testified that

they had observed Washington at the corner of Warnock and Louden Streets

immediately before the shooting. Id. at 28. Neither Carson nor McClain saw

Washington with a gun or firing a weapon. Id. However, the Commonwealth

impeached both witnesses with their prior statements and testimony. Id. at

28-29. Washington contends that the testimony of Polk and Smith, under this

scenario, would have been relevant and exculpatory. Id. at 29.

Under the PCRA,

where a petition is otherwise timely, to prevail on an after-
discovered evidence claim for relief under [42 Pa.C.S.A.
§] 9543(a)(2)(vi), a petitioner must prove that (1) the
exculpatory evidence has been discovered after trial and could not
have been obtained at or prior to trial through reasonable
diligence; (2) the evidence is not cumulative; (3) it is not being
used solely to impeach credibility; and (4) it would likely compel
a different verdict. Commonwealth v. D’Amato, 579 Pa. 490,
856 A.2d 806, 823 (Pa. 2004); see [Commonwealth v.] Cox,
146 A.3d [221,] 227-28 [(Pa. Super. 2016) ([stating that] “[o]nce

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J-S16039-20

jurisdiction has been properly invoked, … the relevant inquiry
becomes whether the claim is cognizable under [Section 9543] of
the PCRA.”).

Commonwealth v. Burton, 158 A.3d 618, 629 (Pa. 2017) (citation omitted).

In its Opinion, the PCRA court addressed Washington’s claim and

concluded that it lacks merit. See PCRA Court Opinion, 3/25/19, at 7. We

agree with the sound reasoning of the PCRA court, as set forth in its Opinion,

and affirm on this basis with regard to Washington’s first claim. See id.

We next address Washington’s related claim of ineffective assistance of

trial counsel. Washington claims that his trial counsel rendered ineffective

assistance by not interviewing, and presenting as trial witnesses, Polk and

Smith. Brief for Appellant at 38. Washington argues that the

Commonwealth’s case was dependent upon the credibility of the

eyewitnesses. Id. at 39. Washington argues in his brief that

the Commonwealth tasked the jury with deciding between the
unrecorded interrogation statements and trial testimony of []
Carter, [] McClain, and Rasheed Ali [(“Ali”)]. Consequently, the
jury had to determine which of t[hem] presented as more credible
and believable. The Commonwealth forcefully and repeatedly
argued that their unrecorded interrogation statements were more
credible and presented the truth.

Id. According to Washington, the Commonwealth’s intentions were

foreseeable, based upon the way in which the testimony proceeded at Burke’s

trial. Id. Washington asserts that trial counsel “had a duty to pursue avenues

of investigation that could [ha]ve potentially produced evidence calling into

question the credibility and veracity of [the witnesses’] unrecorded

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J-S16039-20

statements.” Id. at 40. Washington argues that “trial counsel should [ha]ve,

at the very least, knocked on several more doors to see if anyone saw

anything.” Id. at 42.

To prove that counsel was ineffective, a petitioner must demonstrate

that (1) the underlying legal issue has arguable merit; (2) counsel’s actions

lacked an objective reasonable basis; and (3) he was prejudiced by counsel’s

act or omission. Commonwealth v. Cousar, 154 A.3d 287, 296-97 (Pa.

2017). The failure to prove any prong of this test will defeat an ineffectiveness

claim. Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014).

Moreover, to establish ineffectiveness of counsel based on the failure to

call a witness, a petitioner must show that (1) the witness existed; (2) the

witness was available to testify for the defense at trial; (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 witness’ testimony

was so prejudicial as to have denied the petitioner a fair

trial. Commonwealth v. Puksar, 951 A.2d 267, 277 (Pa. 2008).

In its Opinion, the PCRA court concluded that Washington failed to

establish this ineffectiveness claim:

[A]t no point does [Washington] attempt to prove that these
witnesses were available, wanted to come forward and would have
been willing to testify. Furthermore, [Washington] does not
address whether counsel had a strategic decision in not calling
these witnesses, nor does [Washington] address how the calling
of these witnesses would have, with reasonable likelihood,
changed the outcome of trial. Accordingly, this claim lacks merit.

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J-S16039-20

PCRA Court Opinion, 3/25/19, at 9. Our review of the record confirms the

PCRA court’s analysis and conclusion. See id.

In addition, we conclude that Washington failed to establish that counsel

lacked a reasonable basis for not subpoenaing or interviewing Polk and Smith:

Mere conclusory allegations, without some proffer as to what
counsel would say in response to the allegations[,] are insufficient
to establish entitlement to relief. Thus, a supporting document
from counsel stating his reasons for the course chosen is generally
necessary to establish potential entitlement to a hearing. See,
e.g., Pa.R.Crim.P. 902(A)(12)(b) ([stating that a] PCRA petition
shall contain facts supporting each ground for relief; if supporting
facts do not appear of record[,] “affidavits, documents and other
evidence showing such facts” [should] be identified).

* * *

… Although [the Supreme] Court has dismissed claims of
ineffectiveness where [the] appellant has not provided
counsel’s affidavit, we have indicated we may overlook the failure
where appellant adequately explains why he did not submit
it. See Commonwealth v. Marshall, []571 Pa. 289, 812 A.2d
539, 547-48 (Pa. 2002) ([stating that a] significant factor in
finding [that] appellant did not establish [that] prior counsel
had no reasonable basis for inaction was appellant’s failure to
provide [an] affidavit, or explanation as to why he was unable to
procure [an] affidavit).

Cousar, 154 A.3d at 300.

Here, Washington failed to establish that counsel lacked a reasonable

basis for inaction or explain why he was unable to procure an affidavit from

counsel. See id. For this reason, and for the reasons set forth in the PCRA

court’s Opinion, we cannot grant Washington relief on this claim. See id.;

see also Commonwealth v. Birdsong, 650 A.2d 26, 32 (Pa. 1994) (stating

that to establish ineffective assistance of counsel, the appellant must

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J-S16039-20

demonstrate, not just allege, that counsel had no reasonable basis for his or

her conduct).

In his second claim, Washington asserts that his trial counsel rendered

ineffective assistance by not developing and presenting photographic evidence

to the jury undermining Carter’s unrecorded interrogation statement. Brief

for Appellant at 50. In support, Washington argues the following:

At trial, [Carter] testified that he crawled under the Impala when
the shooting began[,] and then crawled into the Impala. [Carter]
testified, though, [that] he didn’t look at the gunmen when he was
under the Impala, and even if he had, he would’ve been unable to
see the gunmen because of where and how he was positioned
under the Impala. The Commonwealth, however, introduced his
[prior] statement where he claimed [that] he had an unobstructed
view of the gunmen and he saw [] Washington and [] Burke
shooting.

Id. According to Washington, counsel should have obtained a 2004 Impala,

parked in its exact location at the time of the shooting, crawled under the

vehicle, and taken pictures capturing Carter’s field of vision. Id. at 50-51.

Once again, to support his ineffectiveness claim, Washington baldly

asserts that counsel had no reasonable basis for not taking such photographs

and presenting them at trial. Washington fails to demonstrate counsel’s lack

of a reasonable basis beyond bald assertions. Because such claims are not

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J-S16039-20

self-proving, we cannot grant him relief on this claim.5 See Cousar, 154 A.3d

at 300; Birdsong, 650 A.2d at 32.

In his third claim, Washington argues that trial counsel rendered

ineffective assistance by not requesting a Kloiber instruction. Brief for

Appellant at 61. Washington contends that at trial, Carter, Ali and McClain

each testified that they did not see the gunmen at the time of the shooting.

Id. Washington states that, in response, the Commonwealth presented the

three witnesses’ prior statements identifying Washington as the gunman. Id.

According to Washington, he “was entitled to a Kloiber instruction informing

the jury that it had to view the three in-court identifications with caution

because of [the witnesses’] failure and/or refusal to identify Washington

during their trial testimony.” Id. On this basis, Washington argues that his

trial counsel rendered ineffective assistance by not requesting a Kloiber

instruction. Id.

“A Kloiber charge is appropriate where there are special identification

concerns: a witness did not have the opportunity to clearly view the

defendant, equivocated in his identification of a defendant, or had difficulty

making an identification in the past.” Commonwealth v. Reid, 99 A.3d 427,

448 (Pa. 2014) (citations omitted).

____________________________________________

5 Even if Washington had established that counsel lacked a reasonable basis
for not taking such photographs, we would conclude that the claim lacks
arguable merit, for the reasons set forth in the PCRA court’s Opinion. See
PCRA Court Opinion, 3/25/19, at 10-11.

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J-S16039-20

Our case law makes clear that the need for a Kloiber charge
focuses on the ability of a witness to identify the defendant. Our
Commonwealth’s decisional law has long held that prior
inconsistent statements based upon fear of endangerment do not
equate to a prior failure of ability to identify a defendant.

Id. at 449 (citations omitted). “Unlike the typical Kloiber situation, where

there is a damaging in-court identification of the accused, the same type of

concerns are not present where a witness declines to identify the defendant

in court.” Commonwealth v. Sanders, 42 A.3d 325, 335 (Pa. Super. 2012).

As Washington acknowledges in his brief, the three witnesses each

testified that they did not see the gunmen, “either because they were hiding

in or under a car or running away from the shooting ….” Brief for Appellant at

61. Because the witnesses provided no in-court identification, a Kloiber

instruction was not warranted. See id. Consequently, there is no arguable

merit to Washington’s underlying claim and his claim of ineffective assistance

of counsel fails. See Cousar, 154 A.3d at 296-97; Fears, 86 A.3d at 804.

In his fourth claim, Washington argues that cumulative prejudice caused

by counsel’s errors rendered his trial fundamentally unfair. Brief for Appellant

at 64. However, Washington’s cumulative prejudice claim is predicated on the

prior claims of ineffective assistance of counsel. See id. Because we

concluded that those claims lack merit, Washington’s claim of cumulative

prejudice cannot be sustained.

In his fifth claim, Washington claims that trial counsel rendered

ineffective assistance by misrepresenting the plea negotiations to Washington.

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J-S16039-20

Id. According to Washington, the Commonwealth offered to drop the first-

degree murder charges in exchange for Washington tendering a guilty plea to

two counts of third-degree murder. Id. The Commonwealth further agreed

not to seek a sentence of life in prison. Id. Washington asserts that he asked

trial counsel to make a counteroffer. Id. The counteroffer would have

required the Commonwealth to join plea counsel in requesting that the two

third-degree murder sentences be imposed concurrently. Id. According to

Washington, counsel represented that the prosecutor checked with her

supervisor and rejected the counteroffer. Id. at 65-66. However, Washington

claims that at an unrecorded sidebar, it became apparent that his counsel

never tendered the counteroffer to the Commonwealth. Id. at 66.

Washington argues that trial counsel’s misrepresentation deprived him of the

opportunity to consider and accept the original plea offer. Id. Washington

claims that the PCRA court improperly denied him an evidentiary hearing to

develop this claim. Id. at 67. Washington directs our attention to the United

States Supreme Court’s decision in Lafler v. Cooper, 566 U.S. 156 (2012),

to support his claim. Brief for Appellant at 67.

In its Opinion, the PCRA court addressed this claim, and concluded that

it lacks merit. See PCRA Court Opinion, 3/25/19, at 12. We agree with the

sound reasoning of the PCRA court and affirm on this basis with regard to

Washington’s fifth claim. See id.

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J-S16039-20

Finally, in his sixth claim, Washington argues that the PCRA court

improperly denied his PCRA Petition without an evidentiary hearing. Brief for

Appellant at 68. Washington’s claim relies upon the allegations raised in his

prior issues. See id. Because we conclude that his prior claims lack merit,

we discern no abuse of discretion by the PCRA court in not conducting an

evidentiary hearing. See Pa.R.Crim.P. 907(1) (stating that “[i]f the judge is

satisfied from … review that there are no genuine issues concerning any

material fact and that the defendant is not entitled to post-conviction collateral

relief, and no purpose would be served by any further proceedings, [after

giving notice of its intent to dismiss,] the judge thereafter shall order the

petition dismissed[.]”).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/30/20

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e
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY

CRIMINAL TRIAL DIVISION

COMMONW.EALTH OF PENNSYLVANIA CP-51-CR-0008855-2008

v.

YUSEF WASHINGTON, Appellant

OPINION OF THE COURT

Appellant, Yusef Washington, appeals from this Court's denial of relief pursuant to the

Post-Conviction Relief Act (PCRA), 42 Pa. C.S.A. §9541 et seq. For the reasons set forth below,

this Court's Order denying relief should be affirmed.

From May 3, 2010 through May 13, 2010, Appellant was tried in a jury trial before this

Court. At the conclusion of the trial, the jury found Appellant guilty of two counts of First

Degree Murder, Aggravated Assault, Conspiracy and related offenses for the June 7, 2006

killings of Charles Carter and Niall Saracini and the wounding of Keith McClain near Warnock

and Louden Streets in Philadelphia.

On October 22, 2010, this Court sentenced Appellant to life imprisonment for each

murder, and concurrent terms of 10-20 year terms of imprisonment for aggravated assault and

conspiracy, and 1-2 years for possessing an instrument of crime. Timely post sentence motions

were filed and denied. A timely appeal was filed. On October 22, 2012, the Superior Court

affirmed the judgment. On July 2, 2013, the Supreme Court denied allocatur.

On April 7, 2014, Appellant timely filed a pro se PCRA petition. Current counsel entered

his appearance on November 8, 2014. On May 1, 2017, Appellant filed an amended PCRA

petition. On January 18, 2018, Appellant filed a supplement to his amended PCRA petition. The

Commonwealth filed a Motion to Dismiss. Subsequently, after reviewing the pleadings, the
record and the law, and after complying with the procedural requirements of Pa.R.Crim. P. 907,

this Court denied the petition as meritless without granting a hearing. The instant timely appeal

followed.

The facts as found by the jury as fact finder can be summarized as follows: Police Officer

Stanley Davis testified that at approximately 12:35 P.M. on June 7, 2006 while in an unmarked

vehicle he heard gunshots and saw pigeons flying. He drove around the corner to 4800 Warnock

Street and saw a male lying on the sidewalk suffering from a gunshot wound to his forehead. He

also saw a silver Impala pulling away from the scene. Eventually, the officer together with other

marked vehicles stopped the Impala. In that car was another gunshot victim who appeared to be

shot in the neck. The officer also observed bullet holes in the driver's side of the car. N.T.

5/5/10, 44-59.

Police Sergeant Edward Schikel processed the scene, which was the intersection of

Warnock and Louden Streets. He found eight (8) .9 millimeter fired cartridge casings near a

cement barrier. In another location he found a cluster of .380 fired cartridge casings. He also

collected various projectiles and pieces of projectiles, as well as a baseball cap with what

appeared to be a bullet hole and a sample from what appeared to be a blood stain on the

pavement. N.T. 5/5/10, 68-114.

Thomas Bunting testified that at the time of the incident he was at 11th and Louden

Streets delivering beer to a deli. He saw two groups of males totaling approximately seven (7)

people arguing and fighting. One of the males was sucker punched in the face. Eventually the

altercation ended. One group went towards Warnock Street and the other group which included

the male who sucker punched the other went towards Broad Street. Approximately ten (10)

minutes later three men came back from the Broad Street side and were continuing towards

2
Warnock Street. They were dressed differently from the men who previously left going towards

Broad Street. About a minute or two later he heard gunfire and called 9-1-1. N.T. 5/5/10, 131-

147.

Rasheed Ali, who was incarcerated at the time he testified after being convicted of

numerous violent felonies, testified that he was the owner of the Impala and had loaned the car to

Niall Saracini earlier that. He further testified that later that day he needed the car back and went

to 11th and Louden where the car was parked and heard gunshots. Charles Carter and Niall

Saracini were shot. He put Saracini into the Impala and drove towards Einstein Hospital. Before

the jury he denied any further involvement in the incident. However in prior sworn testimony

given on September 22, 2008 and in a prior verbatim statement given to police on June 7, 20061,

he stated that when he came upon the scene he saw two people shooting into his car. When they

stopped shooting the shooters ran up Warnock Street towards Rockland Street. Mr. Ali ran

towards his car and saw the two victims. He tried to put Carter into his car but the victim was

bleeding too badly. He was able to get Saracini into the car and drove towards Einstein Hospital.

In his police statement Ali identified photographs of Appellant and Appellant's cousin, Braheem

Burke as the shooters. N.T. 5/5/10, 161-220; 5/6/10, 5-26.

The medical examiner testified that both victims died from gunshot wounds. Specifically

Carter received two gunshot wounds. The fatal wound entered his forehead and exited the back

of the head. He also received a shrapnel type injury to the back of his right arm which was

consistent with a bullet passing through a car door. Saracini received a gunshot wound through

his neck. He also received a gunshot wound to his shoulder blade and another to his back in

I The
jury properly was instructed under what circumstances it may consider evidence of prior testimony and prior
verbatim statements as substantive evidence. N.T. 5/12/10, 132-134.

3
which the bullets were recovered. He also had two gunshot wounds through his arms. He died

from these multiple gunshot wounds. N.T. 5/6/10, 118-140.

Eric Carter testified that he knew Appellant and his cousin, Braheem Burke, whom he

called "Newsy." On the day of the shooting the witness was with his cousin, Keith McClain2

and a third person named Ty. The witness and his "brothers' were part of a group that

congregated at 11th and Louden Streets. Appellant and Newsy were part of a group that

congregated on Warnock Street. Shortly before the shooting the groups met and an argument

ensued between Keith and one of Appellant's cousins. The witness observed the argument and

called Niall Saracini. The witness then became involved in a fistfight with Newsy. Police came

to the neighborhood and the fight broke up. The groups separated: Appellant's group went

towards Warnock Street and the witness' group went towards 13th Street. The witness' group

later went back towards the scene of the eventual shooting and saw Niall Saracini drive up in the

Impala. Charles Carter got into the car. The witness kept walking towards Warnock Street and

saw Appellant and his group on the corner. As the groups met, the witness punched a member of

Appellant's group named Rachman. The witness further testified that shots then rang out and the

witness jumped in the car with the two victims. The witness and members of his group were

unarmed. In his testimony he gave no further details about the incident. However in prior

testimony and in a verbatim statement given to police a few hours after the shooting the witness

provided further details. Specifically he stated that his initial encounter with Newsy was that

Newsy sucker punched 3 him. He also stated that he saw the shooting and identified both

Appellant and Newsy as the shooters. N.T. 5/10/10, 12-79.

2
The witness was Charles Carter's brother. During his testimony he also referred to the second decedent and to
Keith McClain as his brothers also.
3 Carter used the word "snuck."

4
 Keith McClain also testified. He testified that he also received a gunshot wound that

Appellant and Newsy were present at the scene of the shooting, but the witness denied seeing

who fired the shots. In his verbatim statement given to police and in prior testimony the witness

said that Newsy pointing a black revolver. N.T. 5/11/10, 7-75; 117-131 (Testimony of Detective

Fetters).

Detective Michael Walter testified to Appellant's flight from the jurisdiction following

the murder. A warrant for Appellant's arrest was obtained on June 8, 2006. Over the next few

weeks and months police went to various locations looking for Appellant with negative results.

Surveillances were conducted with negative results. Wanted posters were prepared and

distributed to police throughout the city with negative results. Newspapers ran stories about

Appellant being a fugitive and requested the public's assistance in locating Appellant. On April

12, 2008, almost two years after the arrest warrant was obtained and about a month after the last

public plea for help published in the Daily News, Appellant was arrested in North Carolina.

Forensic Scientist Gamal Emira examined the clothing taken from the decedent Niall

Saracini. He observed two bullet holes in the back shoulder area of a shirt. He was able to

determine the presence of gunpowder particles around the holes which indicated that the muzzle

of the gun was within two to three feet of the shirt when fired. N.T. 5/10/10, 171-201.

Firearms Examiner Kenneth Lay examined twenty-eight (28) items of ballistic evidence.

The fired cartridge casings were from two distinct guns; a .9 millimeter and a .380. The

evidence was consistent with the shooters moving either towards or away from a target. Bullets

recovered from the car were fired from a .380. Another bullet fragment was recovered which

was consistent with being fired from a revolver. Six bullet jackets were recovered which also

were consistent with being fired from a revolver.

5
 In Appellant's instant petition, Appellant raised six claims for consideration. Appellant's

first claim is a claim that after discovered evidence serves as a basis for a new trial. Appellant's

next five claims are claims of ineffective assistance of counsel. Appellant's first ineffective

assistance of counsel claim is a claim that counsel was ineffective for failure to interview the

residents of the 4800 block of Warnock Street. Appellant's second ineffective assistance of

counsel claim is a claim that counsel was ineffective for failure to present evidence to the jury

undermining Eric Carter's statement. Appellant's third ineffective assistance of counsel claim is

a claim that counsel was ineffective for failure to request a Kloiber instruction. Appellant's

fourth ineffective assistance of counsel claim is a claim for cumulative prejudice. Appellant's

final claim for ineffective assistance of counsel is a claim that counsel was ineffective for

misrepresenting a plea offer. We will address each claim individually in the order in which they

were presented.

Appellant's first claim is a claim involving after-discovered evidence. The after-

discovered evidence Appellant alleged warranted a hearing involved statements made by two

individuals, Larry Polk and Kevin Smith. The substance of these statements involved the

following: Both stated they saw Appellant without a gun immediately before and after the

shooting and neither saw him shooting at anyone. Appellant claimed the statements provided by

these two individuals, if heard by the jury, would have likely resulted in a different verdict. As a

result, Appellant believed these statements should qualify as admissible after-discovered

evidence, which should result in at least an evidentiary hearing. However, Appellant is

misguided.

In order for after-discovered evidence to be the basis for a new trial, four elements must

be met. After discovered evidence must: (I) be discovered after trial and could not have been

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obtained any sooner by the exercise of reasonable diligence; (2) not be merely corroborative or

cumulative; (3) not be used solely for impeachment purposes; and (4) be of such a nature and

character that a different verdict will likely result if a new trial is granted. Commonwealth v.

Johnson, 841 A.2d 136, 140-141 (Pa. Super. 2003). Appellant has failed to meet all of the

required factors.

In Appellant's instant petition, Appellant makes no reference to being able to meet the

first factor. Appellant preemptively assumed they would not be able to meet this standard due to

the fact Appellant has not provided any reasoning as to why these statements could not have

been obtained before trial. Appellant, instead, indicated that his ineffective assistance of counsel"

claim for failure to adequately investigate might be the appropriate place for this argument to

potentially be discussed. However, that is not an adequate argument to meet the first element of

the test set forth in Johnson.

Furthermore, Appellant has failed to meet either the second or fourth factor of the test.

Appellant claimed, "Polk's and Smith's observations actually corroborate what Eric and

McClain testified to at trial." Petition, 24-25. As such, this would be considered evidence that is

merely corroborative or cumulative and not grounds for a new trial. In addition, Appellant does

not discuss how this evidence would likely alter the outcome of the trial. Neither of these two

individuals stated that Appellant did not or could not shoot the victim, nor was there any

explanation given as to why these witnesses have not come forward in the past 11 years.

Accordingly, this claim lacks merit.

Appellant's next five claims are claims in which Appellant alleged ineffective assistance

of counsel. "Ineffective assistance of counsel is a mixed question of law and fact that we

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Significantly Appellant does not claim that counsel lacked a reasonable basis for not pursuing the evidence and
provides no analysis to demonstrate how, if at all, he may have been prejudiced by not pursuing this information.

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review de novo." United States v. Blaylock, 20 F.3d 1458, 1464-65 (1994). The United States

Supreme Court in Strickland v. Washington, 466 U.S. 668, 685 (1984), stated, "[t]he

Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic

elements of a fair trial largely through the several provisions of the Sixth Amendment including

the Counsel Clause." The Supreme Court also stated, "[t]hat a person who happens to be a

lawyer is present at trial alongside the accused, however, is not enough to satisfy the

constitutional command. The Sixth Amendment recognizes the right to the assistance of counsel

because it envisions counsel's playing a role that is critical to the ability of the adversarial system

to produce just results. An accused is entitled to be assisted by an attorney, whether retained or

appointed, who plays the role necessary to ensure that the trial is fair." Id. As a result, the

Supreme Court has acknowledged that the right to counsel is the right to effective counsel. Id. at

686. The law presumes that counsel was effective and, therefore Appellant has the burden to

show that counsel was ineffective. Commonwealth v. Baker, 614 A.2d 663, 673 (Pa. 1993).

Counsel is presumed effective and Appellant bore the burden of proving that counsel

provided ineffective assistance of counsel. Commonwealth v. Rivers. 786 A.2d. 923 (Pa. 2000).

The Strickland Court set out a test where a defendant would have to show that (1) his attorney's

performance was unreasonable under prevailing professional standards and (2) that there is a

reasonable probability that but for counsel's unprofessional errors; the result would have been

different. Strickland v. Washington at 687-690. In reviewing the PCRA, the Pennsylvania

Supreme Court, in Commonwealth v. Douglas, 645 A.2d 226, 230 (Pa. 1994), stated, "[t]o

prevail on such a claim, Appellant must demonstrate that (1) the underlying claim is of arguable

merit; (2) counsel's course of conduct was without a reasonable basis designed to effectuate his

interest; and (3) that he was prejudiced by counsel's ineffectiveness." To show prejudice

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Appellant must establish that, but for counsel's errors, the outcome of the trial would have been

different. Commonwealth v. Bond, 819 A.2d 33, 42 (Pa. 2002). Appellant's failure to satisfy all

the prongs of the test should result in the dismissal of the ineffective counsel claim.

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

"Allegations of the deprivation of the right to effective representation of counsel are not

self-sustaining, The burden of proof of the allegations remains with the claimant, their accuracy

still to be established by his submission of relevant proofs." Com. v. Hentosh, 554 A.2d 20, 24

(Pa. 1989). Without the submission of relevant proofs supporting the claim of ineffectiveness,

summary rejection of the claim is warranted. Id. at 25. If a defendant fails to demonstrate that

counsel's act or omission had an adverse effect on the outcome of the proceedings, the

ineffectiveness claim should be dismissed on that basis alone, and the court need not first

determine whether the defendant has satisfied the first and second prongs of the test.

Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa. 1998).

To be entitled to an evidentiary hearing on a claim of ineffectiveness, a defendant must

"set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing

court can conclude ... counsel may have, in fact, been ineffective." Commonwealth v. Priovolos,

715 A.2d 420, 422 (Pa. 1998) (quoting Commonwealth v. Pettus, 424 A.2d 1332, 1335 (Pa.

1981)).

Appellant's first ineffective assistance of counsel claim is a claim that counsel was

ineffective for not finding Larry Polk and Kevin Smith. "[T]o succeed on a claim of trial

counsel's ineffectiveness for failure to call a witness, the appellant 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's existence; (4) that the witness was prepared

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to cooperate and would have testified on appellant's behalf; and (5) that the absence of the

testimony prejudiced appellant.'' Fulton, 830 A.2d at 572.

Appellant has failed to provide evidence in order to meet this standard. At no point does

Appellant attempt to prove that these witnesses were available, wanted to come forward and

would have been willing to testify. Furthermore, Appellant does not address whether counsel had

a strategic decision in not calling these witnesses, nor does Appellant address how the calling of

these witnesses would have, with reasonable likelihood, changed the outcome of trial.

Accordingly, this claim lacks merit.

Appellant's second ineffective assistance of counsel claim is a claim that counsel was

ineffective for not taking a photo from under the car to demonstrate what someone could see

from that angle. One of the witnesses who testified at trial, Eric Carter, testified to watching the

incident from underneath a Chevrolet Impala. Appellant claimed counsel was ineffective for not

renting a 2004 Impala, parking it in the exact location where it was parked during the shooting,

crawling under the car, and taking a quality photo to present to the jury while cross examining

Eric Carter at trial. Appellant believed this would impeach Eric Carter's statement in which he

claimed "that he could see [Appellant] and [ co-defendant] shooting while hiding under the

Impala." Petition, 32. However, Appellant is misguided.

Appellant provided a photo in his instant petition depicting, what he believed to be, the

viewpoint Eric Carter had during the shooting. However, Appellant has not provided any

evidence the photograph provided accurately represents the viewpoint of the witness during the

shooting. Instead, Appellant has used a viewpoint that is favorable for Appellant's argument

without confirming it to be accurate. As such, this photograph provided by Appellant is

extremely speculative, as would any photograph taken by an investigator hired by counsel.

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Therefore, Appellant is asking for inadmissible, speculative evidence to be used as grounds for a

new trial. Trial counsel cannot be found ineffective for not presenting inadmissible evidence.

Commonwealth v. Harris, 703 A.2d 441, 450 (Pa. 1997). Accordingly, this claim lacks merit.

Appellant's third ineffective assistance of counsel claim is a claim that counsel was

ineffective for not requesting an instruction pursuant to Commonwealth v. Kloiber, 106 A.2d 820

(Pa. 1954) regarding three witnesses' identification testimony. A Kloiber charge instructs the

jury that an eyewitness' identification should be viewed with caution where the eyewitness: (1)

did not have an opportunity to clearly view the defendant; (2) equivocated on the identification

of the defendant; or (3) had a problem making an identification in the past." Commonwealth v.

Jones, 954 A.2d 1194, 1198 (Pa. Super. 2008). Appellant cites Commonwealth v. Sanders, 42

A.3d 325, 334 (Pa. Super. 2012), which states, "It is settled that in-court identification evidence

must be received with caution if the witness in his testimony or at prior times was not positive as

to the identity of the defendant." Petition, 36. However, Appellant is misguided in its application

to his case.

Kloiber instructions are to be given when a jury needs to be alerted to the fact that "a

witness might be physically incapable of making a reliable observation." Commonwealth v.

Collins, 70 A.3d 1245, 1255 (Pa. Super. 2013). Appellant is using the witnesses' refusal to

cooperate in court as if it is the same as a physical ability to observe, which it unequivocally is

not. Appellant has not met any of the three factors that would trigger a Kloiber instruction,

Accordingly, this claim lacks merit.

Appellant's fourth ineffective assistance of counsel claim is a claim of cumulative error.

Appellant is combining the prior three ineffective assistance of counsel claims in order to make

the claim of cumulative error. However, the Pennsylvania Supreme Court stated, "this Court has

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repeatedly held, no number of failed claims may collectively warrant relief if they fail to do so

individually." Commonwealth v. Williams, 896, A.2d 523, 548 (Pa. 2006). Therefore, as

indicated above, since the three prior ineffective assistance of counsel claims lack merit,

Appellant cannot successfully bring a cumulative error claim. Accordingly, this claim lacks

merit.

Appellant's fifth ineffective assistance of counsel claim is a claim that counsel was

ineffective for misrepresenting a plea offer. Appellant claimed counsel told him that he would

check with the prosecution about a counter-offer to a plea offer, yet testimony indicated counsel

told the prosecution a counter-offer would not be worth pursuing with a supervisor. Appellant

claimed this is evidence that counsel misrepresented the plea negotiations; therefore, a new trial

or an evidentiary hearing is warranted. However, Appellant is misguided.

In an effort to prove his claim, Appellant cites Lafler v. Cooper, 566 U.S. 156, 163

(2012), which states:

"Appellant ''must show that but for the ineffective advice of counsel there is a
reasonable probability that the plea offer would have been presented to the court
(i.e., that the defendant would have accepted the plea and the prosecution would
not have withdrawn it in the light of intervening circumstances, that the comt
would have accepted its terms, and that the conviction or sentence, or both, under
the offer's terms would have been less severe than under the judgment and the
sentence that in fact were imposed."

However, Appellant does not offer evidence in order to prove the requirements set forth in

Lafler. Appellant does not present an offer of proof that would demonstrate the Commonwealth's

willingness to change its offer. When it comes to getting an evidentiary hearing through the

PCRA, it is Appellant's job to support his claims with specificity and to support those claims

with proffers of evidence. Commonwealth v. Miner, 44 A.3d 684 (Pa. Super. 2012).

Accordingly, this claim lacks merit.

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For the reasons set forth above, the Order denying PCRA relief should be affirmed.

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