Com. v. Justiniano, F.

J-S33006-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FRANK JUSTINIANO :
:
Appellant : No. 1976 EDA 2019

Appeal from the PCRA Order Entered June 18, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001500-2013

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

MEMORANDUM BY DUBOW, J.: FILED AUGUST 19, 2020

Appellant, Frank Justiniano, appeals from the June 18, 2019 Order

entered in the Philadelphia County Court of Common Pleas denying his first

Petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. Counsel for Appellant, James Lloyd, Esquire, has filed an

Anders1 Brief and a Motion to Withdraw as Counsel. After careful review, we

grant counsel’s Motion to Withdraw and affirm.

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* Former Justice specially assigned to the Superior Court.

1 See Anders v. California, 386 U.S. 738 (1967). Although Counsel filed an
Anders brief, the proper mechanism when seeking to withdraw in PCRA
proceedings is a Turner/Finley brief. See Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988). However, because an Anders brief provides greater protection to a
criminal appellant, we may accept an Anders brief in lieu of a Turner/Finley
no-merit brief. Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa.
J-S33006-20

Background

The relevant facts and procedural history are as follows. The

Commonwealth charged Appellant with numerous offenses arising from his

involvement, along with four other people, in an October 24, 2012 assault on

the victim, Christopher Corisdeo.2

On December 14, 2014, Appellant proceeded to a bench trial,

represented by Patrick Link, Esquire. Relevantly, Appellant’s co-defendant,

Brandon Baez, who had entered into a negotiated guilty plea with the

Commonwealth, testified about Appellant’s involvement in the assault. Baez

indicated that the Commonwealth had not promised him a specific sentence

in exchange for his cooperation.3 N.T., 12/3/14, at 52. Following Appellant’s

trial, the court convicted him of Aggravated Assault, Attempted First-Degree

____________________________________________

Super. 2011); Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.
Super. 2004).

2 Appellant, along with three other men, beat the victim, and Appellant
dropped or threw a cinderblock on Appellant’s head, causing the victim to
sustain serious injuries and necessitating that he undergo reconstructive
surgery. The assault caused him to suffer from memory loss, speech
problems, dizziness, depression, and anxiety.

3 Another co-defendant, Alex Webb A/K/A Alexander O’Donnell Colella, also
testified that he had made a statement to police implicating Appellant. N.T.,
12/3/14, at 95-96. Another witness testified that she had seen Appellant
throw a cinder block at the victim’s face. Id. at 114, 116-17.

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Murder, Criminal Conspiracy, and Possession of an Instrument of Crime

(“PIC”).4

On March 17, 2015, the court sentencing court sentenced Appellant to

an aggregate term of 30 to 60 years’ incarceration.

Attorney Link filed a timely Notice of Appeal from Appellant’s Judgment

of Sentence.5 Later that same day, Appellant filed a pro se Motion for

Reconsideration of Sentence. The record indicates that, because Appellant’s

counsel had already filed a Notice of Appeal, the trial court did not take any

action on this Motion.

This Court affirmed Appellant’s Judgment of Sentence on May 11, 2016.

See Commonwealth v. Justiniano, 151 A.3d 1144 (Pa. Super. 2016)

(unpublished memorandum). Appellant did not seek further appellate review

of his Judgment of Sentence, and therefore his Judgment of Sentence became

final on June 10, 2016. See Pa.R.A.P. 903(a); 42 Pa.C.S. § 9545(b)(3).

PCRA Proceedings

On May 3, 2017, Appellant, through counsel, Eric S. Donato, Esquire,

filed a timely first PCRA Petition, raising claims that trial counsel provided

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4 On February 3, 2015, while still represented by Attorney Link, Appellant pro
se filed a Motion for Judgment of Acquittal, a Motion for a New Trial, and a
Motion for New Counsel. This Court’s review of the trial court docket indicates
that the trial court did not forward these pleadings to Attorney Link and did
not take any action on these Motions.
5 Todd Mosser, Esquire represented Appellant in his direct appeal.

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ineffective assistance by failing to: (1) object to the introduction of improper

evidence;6 (2) call witnesses who would have allegedly been favorable to the

defense;7 and (3) pursue a Motion for Reconsideration of Sentence. He also

raised two Brady violations8 and asserted that appellate counsel provided

ineffective assistance by failing to raise the alleged Brady violations on direct

appeal. Petition, 5/3/17, at 1, 4, 21.

On March 13, 2018, Richard T. Bobbe, III, Esquire entered his

appearance on Appellant’s behalf.

PCRA Hearing

On April 17, 2019, the PCRA court held a hearing on Appellant’s Petition.

Appellant’s trial counsel, Attorney Link, testified regarding the allegations of
____________________________________________

6 Appellant claimed that Attorney Link should have objected to the testimony
of Carole Watts, the mother of one the victims, as duplicative and prejudicial.
Petition, 5/3/17, at 27-29.

7 Appellant specifically claimed that his counsel should have presented the
testimony of blood-spatter and medical experts to disprove the
Commonwealth’s assertion that Appellant had picked up and either dropped
or threw a cinder block on the victim’s head and that the victim’s injuries were
consistent with an assault of that kind. Petition, 5/3/17, at 9, 13-21. He also
asserted that counsel should have called Robert Henderson, a U.S. Probation
Officer, who Appellant claims would have testified that some of the
Commonwealth’s witnesses were biased against Appellant and had motives to
incriminate Appellant. Id. at 29-31. Finally, Appellant averred that the trial
counsel should have called alleged eyewitnesses Melanie Brown and Gina
Abraham to testify on his behalf. Id. at 31-32.

8 Brady v. Maryland, 373 U.S. 83 (1963). Appellant claims that the
Commonwealth failed to disclose that it had an agreement for cooperation
with Appellant’s co-defendant, Brandon Baez and withheld from Appellant
color crime scene photos. Petition 5/3/17, at 33-40.

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ineffectiveness in Appellant’s Petition.9 With respect to Appellant’s allegation

that he was ineffective for failing to obtain a medical expert, Attorney Link

testified that he made the strategic decision not to obtain one because he “had

no basis to think that an expert would have testified that the injuries were not

consistent with a cinderblock being dropped on someone’s head.” N.T.,

4/17/19, at 18, 26-29. Counsel did not provide a specific rationale for failing

to present the testimony of a blood-spatter expert. Appellant did not provide

affidavits from any blood-spatter or medical experts.

Attorney Link next explained that he did not call Appellant’s federal

probation officer to testify because “the prejudicial effect would have

outweighed whatever the federal probation officer would have laid out.” Id.

at 19-20, 30-31. Attorney Link testified that, given how involved and “on top

of his case” Appellant was, he believed that he and Appellant discussed this

strategy and decided not to call Appellant’s federal probation officer as a

witness. Id. at 20. Appellant did not submit an affidavit from his federal

probation officer.

Attorney Link explained that Appellant testified on his own behalf at trial

and advanced his theory that the Commonwealth’s witnesses had a reason to

lie about him. Id. at 30-31.

Regarding his decision not to object to the victim’s mother’s testimony,

which Appellant characterized in his PCRA Petition as “duplicative and
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9 Appellant counsel Mosser did not testify at the PCRA hearing.

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prejudicial,” Attorney Link conceded that the testimony was “maybe . . .

inflammatory,” but explained that he did not object because the victim’s

injuries were “definitely serious” and that he “didn’t feel like cutting off the

mother.” Id. at 20, 31. He also testified that he trusted that the trial court

sitting as the finder of fact “could sort of partition out the inflammatory aspect

of the testimony[,] make a decision based on the facts[,]” and give that

witness’s testimony appropriate weight. Id. at 20, 31.

Further, Attorney Link testified that he did not recall speaking with

Appellant about his post-sentence rights before he filed the Notice of Appeal

for Appellant. Id. at 21.

With respect to Appellant’s claim that Attorney Link was ineffective for

failing to call Melanie Brown and Gina Abrams as trial witnesses, Attorney Link

testified that he and his investigator had spoken with those witnesses and

discovered that their statements, especially as it concerned whether Appellant

had blood on his sweatshirt on the day of the incident, conflicted with other

witnesses’ statements.10 Id. at 22, 36-40. Counsel testified that he believed

that he discussed this problem with Appellant because that “would be routine

____________________________________________

10 Ms. Brown submitted an affidavit in connection with Appellant’s PCRA
Petition stating that she had seen Appellant on the day of the incident, that
he had been wearing a grey sweatshirt with no blood on it, that she had
spoken with Appellant’s trial counsel on the day of trial, and that counsel had
informed her that he did not need her to testify. N.T., 4/17/19, at 36. Ms.
Abrams also submitted an affidavit. Id. at 39. Neither witnesses stated in
their affidavit that they had witnessed the incident; they stated only that they
saw Appellant after the incident. Id. The parties stipulated that Ms. Abrams
would provide testimony consistent with her affidavit. Id. at 46-47.

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for [him]” but that he did not recall the specifics of the conversation. Id. at

22. He further testified that Ms. Brown had not seen Appellant immediately

after the incident and, therefore, she did not have direct knowledge of

pertinent, disputed facts. Id. at 34-35.

Attorney Link also testified about the Commonwealth’s use of

photocopies of crime scene photos at trial, noting that “maybe [] they were

not in color?” Id. at 23. He testified that he is sure he asked the

Commonwealth for color photos, but that he thought that the Commonwealth

did not have access to a color printer and “never had color photographs.” Id.

at 23, 43

Attorney Link testified that the Commonwealth shared with him

cooperation agreements it had made with its witnesses, all of which included

standard language to make the sentencing judge aware of the extent to the

witnesses’ cooperation. Id. at 24. He also testified that he did not become

aware of any plea agreements that the Commonwealth failed to divulge prior

to trial. Id. at 25.

On April 24, 2019, one week after the PCRA hearing, although still

represented by counsel, Appellant filed pro se an “Amended Petition and

Memorandum of Law,” in which he objected to his trial counsel’s omission of

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the word “alleged” when referring to the weapon used against the victim. See

Amended Petition, 4/24/19, at 1.11

The court took the matter under advisement. On June 18, 2019, the

PCRA court denied Appellant’s PCRA Petition, permitted PCRA counsel to

withdraw, and appointed James R. Lloyd, Esquire, to represent Appellant in

this appeal.

This timely appeal followed.12

PCRA Appeal

On January 13, 2020, counsel filed an Anders Brief and an Application

to Withdraw as Counsel. On April 16, 2020, Appellant filed a pro se Response

to the Application.

Counsel’s Request to Withdraw

Before we consider Appellant’s arguments, we must review appellate

counsel’s request to withdraw from representation. Pursuant to
____________________________________________

11 Appellant averred that “[t]he correct statement should be (alleged)
cinderblock. Victim was attack[ed] by co-[defendants] with two[-]by[-
]fours[,] sticks[,] two pieces[,] and metal pole of a chair before (alleged)
cinderblock was use[d].” Amended Petition, 4/24/19 at 1. He also asserted
that the Commonwealth deprived him of his “constitutionally guaranteed
access to evidence” when it purportedly failed to preserve original crime scene
photos, and claimed that a police investigation report used as trial evidence
“never mention[ed] any blood spatter.” Id. at 2-3.
12 The PCRA court directed Appellant to file a Pa.R.A.P. 1925(b) Statement.
After concluding that Appellant did not have any arguably meritorious issues
for review, counsel instead filed a Rule 1925(c)(4) Statement. The PCRA court
filed a Rule 1925(a) Opinion, in which it did not address the reasons it denied
Appellant relief and, instead, stated only that it had reviewed the record and
agreed with counsel’s conclusion that Appellant did not raise in his appeal any
non-frivolous issues of arguable merit. PCRA Ct. Op., 10/2/19, at 3.

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Turner/Finley, counsel must conduct an independent review of the record

before withdrawal on collateral appeal is permitted. Commonwealth v.

Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009). Counsel is then required to submit

a “no merit” letter (1) detailing the nature and extent of his or her review; (2)

listing each issue the petitioner wished to have reviewed; and (3) providing

an explanation of why the petitioner’s issues are meritless. Id. The court

then conducts its own independent review of the record to determine if the

Petition is meritless. Id. 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.” Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super.

2007).

Our review of the record discloses that counsel has complied with each

of the above requirements. Additionally, counsel served Appellant with a copy

of the Motion to Withdraw and Anders Brief, advising him that he had the

right to proceed pro se or with privately retained counsel. Since counsel has

complied with the Turner/Finley requirements, we will proceed with our

independent review of the record and the merits of Appellant’s claims.

In the Anders Brief, counsel raises the issue of whether the PCRA court

erred in determining that Appellant’s claims of ineffective assistance of trial

counsel lacked merit and that Appellant did not raise meritorious Brady

claims. Anders Brief at 5. In Appellant’s pro se Response to the Anders

Brief, Appellant reiterated his Brady claims, argued that his trial counsel was

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ineffective for failing to obtain medical and blood-spatter expert witnesses,

and claimed that Attorney Link failed to assist Appellant in litigating his March

13, 2014 pro se Motion for an Evidentiary Hearing.13 See Response, 4/16/20,

at 1-4 (unpaginated). He also asserted that his direct appeal counsel,

Attorney Mosser, was ineffective for failing to raise unspecified claims on direct

appeal. Id. at 3 (unpaginated).

Standard of Review

We review the denial of a PCRA Petition to determine whether the record

supports the PCRA court’s findings and whether its Order is otherwise free of

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This

Court grants great deference to the findings of the PCRA court if they are

supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.

Super. 2007). We likewise give great deference to the PCRA court’s credibility

determinations. Commonwealth v. Johnson, 966 A.2d 523, 539 (Pa.

2009). We give no such deference, however, to the court’s legal conclusions.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).

Brady Violation

“Under Brady, the prosecution’s failure to divulge exculpatory evidence

is a violation of a defendant’s Fourteenth Amendment due process rights. To

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13Appellant had not raised this claim in either his counselled PCRA Petition or
Amended PCRA Petition; rather, he raised it for the first time in his response
to counsel’s Anders Brief. See Pa.R.A.P. 302(a) (“Issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.”).
Thus, we decline to address it.

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establish a Brady violation, a defendant is required to demonstrate that

exculpatory or impeaching evidence, favorable to the defense, was

suppressed by the prosecution, to the prejudice of the defendant.”

Commonwealth v. Cam Ly, 980 A.2d 61, 75 (Pa. 2009) (citation, wuotation

marks, and brackets omitted). A defendant has the burden of proof to

demonstrate that the Commonwealth willfully or inadvertently suppressed or

withheld exculpatory or evidence. Commonwealth v. Weiss, 986 A.2d 808-

815 (Pa. 2009).

As to Brady claims advanced under the PCRA, a defendant must

demonstrate that the alleged Brady violation “so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could

have taken place.” Commonwealth v. Copenhefer, 719 A.2d 242, 259 (Pa.

1998) (citation omitted).

A defendant must also demonstrate that the withheld or suppressed

evidence was material; a court must base its determination of materiality on

considerations of the cumulative or collective effect of the suppressed

evidence. Commonwealth v. Abdul-Salaam, 42 A.3d 983, 984-85 (Pa.

2012). Evidence is material under Brady if there exists a reasonable

probability that the outcome of the trial would have been different if the

Commonwealth had disclosed the evidence. Commonwealth v. Natividad

211 A.3d 11, 26 (Pa. 2019). “[T]he mere possibility that an item of

undisclosed information might have helped the defense, or might have

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affected the outcome of the trial, does not establish materiality in the

constitutional sense.” Cam Ly, 980 A.2d at 76 (citation omitted).

Co-defendant’s Alleged Cooperation Agreement

With respect to Appellant’s assertion that the Commonwealth withheld

the existence of its cooperation agreement with co-defendant Baez, the record

reflects that Baez testified at trial that he had entered into an open guilty plea

and that an unidentified assistant district attorney told Baez that “they would

go light on [his] sentence.” N.T., 12/3/14, at 35, 51-52. Baez also testified

at trial that neither the assistant district attorney prosecuting Appellant nor

any other assistant district attorney made Baez any specific promises about

his sentence.14 Id. at 36, 52.

Attorney Link testified at Appellant’s PCRA hearing that the

Commonwealth provided him with cooperation agreements between the

Commonwealth and Appellant’s testifying co-defendant prior to trial. N.T.,

4/17/19, at 24-25. He also testified that he did not subsequently become

aware of any other plea agreements after Appellant’s trial. Id.

In light of the foregoing, the record supports the PCRA court’s

determination that this Brady claim lacks merit as any evidence pertaining to

Baez’s plea agreement was disclosed during the trial and made known to the

trial court, which sat as the fact-finder, prior to its rendering a verdict.

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14 The prosecutor confirmed on the record at trial that “there isn’t any
[cooperation agreement].” N.T., 12/3/14, at 52.

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Accordingly, Appellant did not establish by a preponderance of the evidence

that the Commonwealth withheld this evidence from Appellant.

Color Photos

Appellant also claimed that the Commonwealth withheld color

photographs of the crime scene from him in violation of Brady. Attorney Link

testified that he requested color photographs of the crime scene from the

Commonwealth, but that it did not provide them because, as was well known

at the time, the Commonwealth did not have a color printer. Appellant has

failed to demonstrate: (1) that the color photographs were exculpatory in a

way that the photographs used by the Commonwealth were not; (2) that the

Commonwealth willfully or inadvertently suppressed or withheld them; and

(3) that this alleged suppression or withholding “so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could

have taken place.” See Copenhefer, 719 A.2d at 259 (citation omitted).

Thus, this claim fails.

Ineffective Assistance of Counsel

Appellant has alleged myriad instances of ineffective assistance of his

counsel. A PCRA petitioner who alleges ineffective assistance of counsel “will

be granted relief only when he proves, by a preponderance of the evidence,

that his conviction or sentence resulted from the ‘[i]neffective assistance of

counsel which, in the circumstances of the particular case, so undermined the

truth-determining process that no reliable adjudication of guilt or innocence

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could have taken place.’” Johnson, 966 A.2d at 532 (quoting 42 Pa.C.S. §

9543(a)(2)(ii)).

We presume counsel is effective. Commonwealth v. Cox, 983 A.2d

666, 678 (Pa. 2009). To overcome this presumption, a petitioner must

establish that: (1) the underlying claim has arguable merit; (2) counsel lacked

a reasonable basis for his act or omission; and (3) petitioner suffered actual

prejudice. Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015). In

order to establish prejudice, a petitioner must demonstrate “that there is a

reasonable probability that, but for counsel’s error or omission, the result of

the proceeding would have been different.” Commonwealth v. Koehler, 36

A.3d 121, 132 (Pa. 2012) (citation omitted). A court will deny the claim if the

petitioner fails to meet any one of these prongs. Commonwealth v. Jarosz,

152 A.3d 344, 350 (Pa. Super. 2016).

In his counselled PCRA Petition, Appellant claimed that his trial counsel

was ineffective because he: (1) failed to present expert testimony from a

medical expert about the victim’s injuries; (2) failed to present the testimony

of a blood-spatter expert; (3) failed to object at trial to testimony from the

victim’s mother; (4) failed to present testimony from Melanie Brown; (5) failed

to present testimony from Gina Abrams; (6) failed to present testimony from

Appellant’s federal parole officer Robert Henderson; (7) failed to file a motion

for reconsideration of Appellant’s sentence; and (8) failed to assert a Brady

claim on direct appeal. Appellant also asserted in a pro se Amended Petition

that his trial counsel was ineffective because: (1) he did not object to

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testimony that Appellant injured the victim with a cinderblock; (2) the

Commonwealth had failed to present a picture of the cinderblock in discovery

or at trial; and (3) the police officer who stopped Appellant for investigation

as Appellant walked away from the scene of the attack did not indicate that

there was blood spatter on Appellant’s clothing. The PCRA court denied

Appellant PCRA relief because it concluded that none of these claims had

arguable merit. We address each of these claims, in turn, and conclude that

the record supports the PCRA court’s finding.

Failure to Present Certain Witness Testimony

Expert Witnesses

To establish counsel’s ineffectiveness for failing to present a potential

witness, a PCRA petitioner must prove that: (1) the witness existed; (2) the

witness was available to testify for the defense; (3) counsel knew of, or should

have known of, the existence of the witness; (4) the witness was willing to

testify for the defense; and (5) the absence of the testimony was so prejudicial

as to have denied the petitioner a fair trial. Johnson, 966 A.2d at 536

(citation omitted). To demonstrate prejudice the petitioner “must show how

the uncalled witness[’s] testimony would have been beneficial under the

circumstances of the case.” Id. (citation omitted).

With respect to Appellant’s assertion that Attorney Link should have

provided testimony from expert medical and blood spatter witnesses,

Appellant has neglected to provide any information regarding the identity of

these proposed witnesses, whether such witnesses existed, whether they were

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available to testify for the defense, whether they were known to trial counsel,

and what the substance of their testimony would be. In light of the

voluminous evidence presented at trial, Appellant has not established that the

absence of this unspecified testimony from unspecified witnesses was so

prejudicial to Appellant as to have denied him a fair trial. Moreover, Attorney

Link testified at Appellant’s PCRA hearing that he had a reasonable basis for

deciding not to obtain expert testimony—his determinations that the victim’s

injuries were consistent with the medical records and other evidence and that

no expert witnesses would credibly testify in Appellant’s favor. See, e.g.

N.T., 4/17/19, at 18, 26-29 (Attorney Link testified that he “had no basis to

think that an expert would have testified that the injuries were not consistent

with a cinderblock being dropped on someone’s head.”). Thus, the trial court

did not err in concluding that these claims lacked merit.

Lay Witnesses

Appellant next claims that his counsel was ineffective for not presenting

the testimony of Gina Abrams and Melanie Brown. Anders Brief at 52. The

evidence of record indicates that these witnesses were available and willing to

testify, and were known to Attorney Link. We, thus, consider only whether

Attorney Link’s decision not to present their testimony so prejudiced Appellant

as to deny him a fair trial.

Appellant admits that he participated in the attack on the victim while

wearing a grey sweatshirt, but denies dropping or throwing concrete or a

cinderblock on the victim’s head and denies that his grey sweatshirt was

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spattered with blood as reported by the police officer who stopped Appellant

after the attack. The affidavits of Ms. Abrams and Ms. Brown indicate that

neither of them directly witnessed the attack on the victim and, therefore,

neither of them could testify as to whether Appellant threw or dropped

concrete on the victim’s head. However, these witnesses did attest to seeing

Appellant after the attack, and that he was not wearing a bloody sweatshirt.

Specifically, Ms. Abrams stated in her affidavit that when Appellant came

to her home after the attack, he was wearing a white t-shirt. Accordingly, Ms.

Abrams’s statement was not relevant to the disputed issue of whether

Appellant’s grey sweatshirt was blood-spattered as he left the scene of the

attack. Attorney Link’s failure to present irrelevant testimony did not deprive

Appellant of a fair trial and did not constitute ineffective assistance of counsel.

Ms. Brown provided in her affidavit that Appellant was wearing a grey

sweat suit immediately after the attack and that she saw no blood “or anything

pertaining to the incident” on it. Brown Affidavit, 7/5/18. Therefore, her

testimony would have corroborated Appellant’s claim that he did not have

blood on his clothing after the attack. This testimony, however, conflicted

with the testimony of a police officer who testified that he stopped Appellant

for investigation because he “had blood all over his sweatshirt” and was

walking hastily away from the unconscious victim.15 N.T., 12/3/14, at 19-20.

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15 Another police officer prepared a “pedestrian investigation report” that is
silent on the issue of whether Appellant’s sweatshirt was bloody.

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Despite the factual dispute about Appellant’s sweatshirt, it is unlikely

that this single issue would have altered the outcome of the proceedings

where the Commonwealth presented the testimony of Appellant’s co-

defendants and other eyewitnesses, all of whom confirmed that Appellant had

thrown “a brick” onto the victim’s head. See id. at 47-48, 96, 102-04, 114-

17, 129. Thus, notwithstanding the conflicting testimony regarding the

presence of blood on Appellant sweatshirt, following our review of the totality

of the proceedings we conclude that Appellant has failed to prove by a

preponderance of the evidence that, but for counsel’s decision not to offer Ms.

Brown’s testimony, the outcome of the case would have been different.

Attorney Link’s failure to offer the testimony of Ms. Brown does not, therefore,

constitute ineffective assistance of counsel.

Appellant also asserts that his counsel was ineffective for failing to offer

the testimony of his federal probation officer Henderson. Anders Brief at 58.

The record on this issue establishes that this witness existed, was likely

available to testify for the defense through subpoena, and that Attorney Link

knew of his existence. Officer Henderson voluntarily spoke with Attorney Link

prior to trial; it is likely, therefore, that he would have been willing to testify

at trial for the defense. Thus, we consider whether the absence of this

witness’s testimony was so prejudicial as to deprive Appellant of a fair trial.

Appellant did not provide an affidavit from Officer Henderson indicating

what the substance of Officer Henderson’s testimony would have been. Thus,

any conclusion that his testimony would have changed the outcome of

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Appellant’s trial is speculative. Moreover, Attorney Link testified that he had

a reasonable basis for deciding not to offer Officer Henderson’s testimony—an

interest in preventing the judge or fact-finder from learning about the fact

that Appellant was on federal probation, when his prior conviction would

otherwise not have been part of the record. See N.T., 4/17/19 at 19-20, 30-

31. Appellant has, therefore, not demonstrated by a preponderance of the

evidence that Attorney Link provided ineffective assistance by not offering the

testimony of Officer Henderson.

Failure to Object to Testimony

Appellant claims that Attorney Link was ineffective for not objecting to

the testimony of the victim’s mother pertaining to the scope of the victim’s

injuries, asserting that it was “inflammatory, duplicative, and unduly

prejudicial to him.” Anders Brief at 47. Attorney Link testified at Appellant’s

PCRA hearing that, although the testimony was inflammatory, he made a

strategic decision not to object to this testimony because he was trying the

case before a judge and not a jury. He believed that the judge could

compartmentalize the inflammatory aspect of the testimony and consider the

evidence for its intended evidentiary purpose. Both the record and settled

case law support Attorney Link’s conclusion. See Commonwealth v.

Gribble, 863 A.2d 455, 462 (Pa. 2004) (holding that a judge sitting as a fact-

finder is presumed to disregard inadmissible evidence and consider only

competent evidence).

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In addition, the testimony to which Appellant asserts his counsel should

have objected catalogued the litany of injuries that the victim’s extensive

medical records also documented, and which the trial court admitted as

exhibits at trial. Accordingly, Appellant is unable to establish both that

Attorney Link lacked a reasonable basis for the decision not to object to the

mother’s testimony and that its admission prejudiced him. The PCRA court,

therefore, properly concluded that his claim lacks merit.

Failure to File a Motion for Reconsideration of Sentence

Next, Appellant claims that Attorney Link was ineffective for failing to

file a Motion to Reconsider Appellant’s sentence before filing a Notice of

Appeal. Anders Brief at 48.

Although counsel is per se ineffective where he fails to perfect a timely

appeal, “the failure to file post-sentence motions does not fall within the

limited ambit of situations where a defendant alleging ineffective assistance

of counsel need not prove prejudice to obtain relief.” Commonwealth v.

Liston, 977 A.2d 1089, 1092 (Pa. 2009) (citation omitted). Stated another

way, Appellant must demonstrate that Attorney Link’s failure to file a Post-

Sentence Motion prejudiced him. We conclude that Appellant failed to

demonstrate such prejudice.

Instantly, the court sentenced Appellant to a standard range 20-40 year

sentence for his Attempted Murder conviction and a consecutive aggravated

range 10-20 year sentence for his Conspiracy conviction. At sentencing, the

court indicated that it considered, inter alia, the presentence investigation

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report, Appellant’s prior record score, the Sentencing Guidelines, victim

impact testimony, Appellant’s allocution, the nature of the crime, its impact

on the victim, Appellant’s acceptance of responsibility (or lack thereof),

Appellant’s remorse (or lack thereof), and prior attempts to rehabilitate

Appellant. N.T., 3/17/15, at 30-33. Because the sentences imposed by the

court were legal, any challenge to Appellant’s sentence would only challenge

the discretionary aspects of his sentence. By dismissing this particular claim

of ineffectiveness of counsel, the PCRA court, which presided as the sentencing

court, indicated that it would not have been inclined to reconsider Appellant’s

sentence had his counsel challenged its discretionary aspects.

Although the failure to file a Motion to Reconsider his sentence results

in waiver of any challenge on direct appeal to the discretionary aspects of a

defendant’s sentence, Appellant is likewise not entitled to relief on this basis.

In order to obtain appellate review of a claim challenging the discretionary

aspects of sentence, a defendant must demonstrate that there is a substantial

question as to the appropriateness of his sentence under the Sentencing Code.

Pa.R.A.P. 2119(f); Commonwealth v. Hyland, 875 A.2d 1175, 1183 (Pa.

Super. 2005). A substantial question exists when an appellant advances a

colorable argument that the sentencing court’s actions were either: (1)

inconsistent with a specific provision of the Sentencing Code; or (2) “contrary

to the fundamental norms which underlie the sentencing process.” Id.

(citations omitted). Appellant has not established that his sentence is

inconsistent with the Sentencing Code or contrary to fundamental sentencing

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norms. Thus, any challenge to the discretionary aspects of his sentence on

direct appeal would not have garnered him relief. We conclude, therefore,

that the instant facts do not establish that, but for counsel’s failure to file a

Motion for Reconsideration of Appellant’s sentence prior to filing a timely

Notice of Appeal, Appellant would have received a lesser sentence.

Failure to Assert a Brady Claim

With respect to Appellant’s claim that his counsel was ineffective for not

pursing Brady claims on direct appeal, as discussed above, Appellant’s Brady

claims lack merit. Accordingly, his counsel could not be ineffective for not

pursuing claims without arguable merit.

Failure to Object to the Absence of the Word “Alleged”

In his pro se Amended Petition, Appellant asserts that his trial counsel

was ineffective for failing to demand that witnesses refer to the weapon used

by Appellant as an “alleged” cinderblock. Anders Brief at 60. The Notes of

Testimony reflect that witnesses variously referred to Appellant’s weapon as

a cinderblock, a piece of cement, a piece of concrete, a brick, a piece of curb,

and a piece of sidewalk. The witnesses did not uniformly refer to the weapon

as a cinderblock. Accordingly, it is unlikely that the court would have granted

an objection to any witness failing to insert the qualifier before using the word

“cinderblock” had counsel raised one. Because this issue lacks arguable merit,

the PCRA court properly concluded that this claim of ineffectiveness was also

meritless.

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Failure of the Commonwealth to Produce a Picture of the Cinderblock
in Discovery or at Trial

Appellant also claimed in his pro se Amended Petition that the

Commonwealth failed to produce in discovery or at trial a picture of the

cinderblock that he used as a weapon. This assertion is factually incorrect.

The Commonwealth introduced a picture of that item into evidence at trial.

See Commonwealth Exhibit C-2C, N.T., 12/3/14, at 9-12.

The Pedestrian Investigation Report Did Not Reflect that Appellant
Had Blood on His Sweatshirt

Appellant last asserts that the police officer who stopped him for

investigation as he walked away from the crime scene did not indicate that

Appellant had blood on his sweatshirt. This assertion is factually correct. See

Commonwealth Exhibit C-4. However, Appellant has not alleged any error on

the part of the PCRA court with respect to this factual assertion. Moreover, to

the extent that Appellant asks that either the PCRA court or this Court reweigh

this piece of evidence or the officer’s testimony, there is no provision of the

PCRA that would afford him this relief.

Order affirmed. Application to Withdraw as Counsel granted.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/19/2020

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