Com. v. Peoples, D.

J-S07004-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DURON BOSTON PEOPLES :
:
Appellant : No. 2110 EDA 2019

Appeal from the PCRA Order Entered June 18, 2019
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0004220-2009

BEFORE: NICHOLS, J., KING, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.: Filed: August 20, 2020

Appellant Duron Peoples appeals from the order dismissing his timely

first Post Conviction Relief Act1 (PCRA) petition. Appellant claims that the

Commonwealth committed a Brady2 violation and that his trial counsel was

ineffective for failing to investigate and present evidence of a former police

detective’s criminal conviction. Appellant also raises several claims of

ineffective assistance of trial counsel for failing to call certain witnesses at

trial. We affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.

2 Brady v. Maryland, 373 U.S. 83 (1963).
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Briefly, the trial evidence established that on October 21, 2006, at

approximately 9:00 a.m., Eric Coxry entered Jonas Suber’s home and fatally

shot Suber with a .45 caliber pistol. Following an investigation, the

Commonwealth charged Appellant with murder, conspiracy to commit

murder, burglary, and solicitation of murder. At trial, the Commonwealth

presented evidence establishing that in late September or early October of

2006, Appellant initially offered Donte Carter $10,000 to kill Jonas Suber,

but Carter refused.

In October 2006, Victor Devalia, Marvin Molina, and Appellant drove

from Georgia to Chester County, Pennsylvania.3 On October 20, 2006, the

day before Suber’s murder, Devalia drove Appellant to a Home Depot in

Downingtown where Appellant met Shamone Woods and gave Woods an

envelope. Later that day, Appellant and Devalia were at Appellant’s home in

Chester County. Appellant showed Devalia a .45 caliber semi-automatic

pistol and a .38 caliber revolver that Appellant had hidden in his home.

According to Devalia, Appellant told him that the .45 caliber pistol is “what

the big boys used to get the job done.” N.T. Trial, 09/24/2014, at 128.

Devalia testified that he, Molina, and Appellant then went to the Regal

Theater in Downingtown. Appellant then donned an afro wig and went into

the theater for about ten minutes or so, during which time the

____________________________________________

3Appellant had residences in both Georgia and Chester County. Id. at 95-
99.

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Commonwealth alleged Appellant gave the .45 caliber pistol to Woods.

Appellant, Molina, and Devalia then drove back to Georgia. During the

drive, Devalia heard Appellant talking to Woods and telling him to “burn the

house down.” Devalia testified that Appellant stated that he did not care

whether the wife and kids were there. Devalia heard Woods reply, “I got

you.” Id. at 149.

Clarence Milton stated that on October 20, 2006, Woods, Coxry and a

third individual came to the home where Milton was staying. Coxry showed

Milton a .45 caliber pistol, and Coxry told Milton that he had been paid

$20,000 to “take care the whole situation” with Suber. N.T. Trial, 9/23/14,

at 99-102.

On October 21, 2006, at around 9:30 a.m., Devalia heard Woods tell

Appellant that Suber had been transported to a hospital. N.T. Trial,

09/24/2014, at 150-52, 155. Appellant then told Devalia that Suber “got

shot” and smirked. Id. at 153. Devalia asked Appellant who did it, and

Appellant responded “my man referred a friend.” Id.

We note that the record shows that on October 22, 2006, Bashera

Grove, Suber’s widow, spoke to Gerald Pawling, who was a detective with

the Coatesville Police Department at that time. When asked to identify the

shooter from a photo array, Grove initially selected a photo of Devalia. N.T.

Trial, 9/22/14, at 110-13; N.T. Trial, 9/23/14, at 77-78.

Devalia was arrested in connection with the Suber murder in Georgia

on November 2, 2006. N.T. Trial, 9/24/14, at 155-57, 190-91. Ralonda

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Spann, Appellant’s paramour, testified that when Appellant learned that

Devalia was arrested, he became very upset and told her that Devalia had

not done anything wrong and that if Devalia were convicted, he would “plead

to everything.” N.T. Trial, 9/25/14, at 226-27, 243-44. The charges against

Devalia were dropped two weeks later, and he was released.

On November 10, 2006, Detective Kevin Campbell of the Coatesville

Police Department executed a search warrant on Appellant’s residence in

Caln Township, Chester County. N.T. Trial, 9/26/14, at 116-27; N.T. Trial,

9/29/14, at 78-82. In addition to Detective Campbell, three other officers

took part in executing the search warrant. N.T. Trial, 9/29/14, at 79. The

police recovered a box of .45 caliber bullets and a loaded .38 caliber revolver

hidden in the laundry room. N.T. Trial, 9/26/14, at 121-27; N.T. Trial,

9/29/14, at 79, 92. Exhibits C-66E, C-66F, C-70. The police searched

Appellant’s residence for over an hour but did not find a .45 caliber semi-

automatic pistol. N.T. Trial, 9/29/14, at 79-80. A fingerprint lifted from the

box of bullets was later matched to Appellants’ fingerprints. Id. at 92.

Pawling was among the officers who searched Appellant’s home with

Detective Campbell.

On or about August 25, 2009 Appellant was arrested and charged with

murder, conspiracy, and related offenses.

In April 2014, approximately five months before Appellant’s trial,

former detective Pawling pled guilty to numerous counts of forgery, access

device fraud, theft, receiving stolen property, and tampering with public

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records in an unrelated case. The charges related to Pawling stealing and

tampering with evidence in the possession of the police. Pawling was

sentenced in July 2014.

On October 1, 2014, a jury convicted Appellant of first degree murder,

conspiracy to commit murder, burglary, and solicitation of first degree

murder.4 N.T. Trial, 10/1/14, at 2-4.

This Court briefly summarized the procedural history of this case in its

decision regarding Appellant’s direct appeal:

On October 2, 2014, the day after [Appellant’s] conviction, the
jury convened and sentenced [Appellant] to life imprisonment for
first-degree murder. On October 24, 2014, the court formally
imposed the sentence of life imprisonment, along with several
concurrent sentences for other offenses. However, with respect
to [Appellant’s] conviction for soliciting Donte Carter to kill
Suber, the court imposed a consecutive sentence of ten to
twenty years’ imprisonment.

Commonwealth v. Peoples, 2015 WL 6948437, *1 (Pa. Super. filed Oct.

30, 2015) (unpublished mem.) (footnote omitted) appeal denied, 136 A.3d

980 (Pa. 2016). This Court ultimately affirmed Appellant’s judgment of

sentence, and our Supreme Court denied Appellant’s petition for allowance

of appeal on April 12, 2016. Id.

On April 4, 2017, Appellant filed a timely pro se PCRA petition. The

PCRA court appointed PCRA counsel, who filed an amended petition on

November 14, 2017, and subsequently filed a second amended petition,
____________________________________________

4 18 Pa.C.S. §§ 2502(a), 903(a)(1), 3502(a), and 902, respectively.

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which the PCRA court accepted on October 18, 2018. In his PCRA petition,

Appellant claims the Commonwealth committed a Brady violation when it

failed to disclose Pawling’s convictions. Second Am. PCRA Pet., 10/10/18, at

¶¶ 30-44. Appellant also claims that trial counsel was ineffective for not

“impeaching” the police’s handling of the investigation based on Pawling’s

criminal conduct. Id. at ¶¶ 45-52. Lastly, Appellant claims that trial

counsel was ineffective for not calling several “key witnesses” who, Appellant

asserted, could provide testimony to rebut the evidence that Appellant

possessed and gave Woods the .45 caliber pistol that was ultimately used to

kill Suber. Id. at ¶¶ 53-60.

On March 13, 2019, the PCRA court issued a Pa.R.Crim.P. 907 notice

of intent to dismiss Appellant’s second amended PCRA petition (Rule 907

Notice), which stated that Appellant’s issues lacked merit. Appellant did not

file a response to the Rule 907 notice, and the PCRA court dismissed

Appellant’s petition on June 18, 2019.

PCRA counsel filed a timely notice of appeal on July 18, 2019.5

Appellant timely filed a Pa.R.A.P. 1925(b) statement. The PCRA court
____________________________________________

5 The PCRA court’s order dismissing the instant PCRA is dated June 17,
2019, but was docketed and mailed to Appellant on June 18, 2019.
Consequently, the appeal period did not begin until that date. See
Commonwealth v. Gaines, 127 A.3d 15, 18 (Pa. Super. 2015) (en banc)
(stating that “in computing any period of time under [the] rules involving the
date of entry of an order by a court or other government unit, the day of
entry shall be the day the clerk of the court or the office of the government
unit mails or delivers copies of the order to the parties” (quoting Pa.R.A.P.
(Footnote Continued Next Page)

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submitted a Pa.R.A.P. 1925(a) opinion referring this Court to its March 13,

2019 Rule 907 Notice and its June 18, 2019 order denying Appellant’s PCRA

petition.

Appellant raises the following issues:

1. The PCRA [c]ourt erred in determining the [Appellant] was
not due relief for his claims based on the failure of the District
Attorney’s Office to disclose the investigation into the illegal
conduct of former-detective Gerald Pawling as impeachment
evidence under Brady v. Maryland.

2. The PCRA [c]ourt erred in determining the [Appellant] was
not due relief for his claims based on the ineffective
assistance of defense counsel with regard to impeachment of
the investigation done by former-detective Gerald Pawling.

3. The PCRA [c]ourt erred in determining the [Appellant] was
not due relief for his claims of ineffective assistance of
counsel for failure to call key witnesses for the defense.

Appellant’s Brief at 7.

Our standard of review for an order denying a PCRA petition is

“whether the determination of the PCRA court is supported by the evidence

of record and is free of legal error. The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.”

Commonwealth v. Grayson, 212 A.3d 1047, 1051 (Pa. Super. 2019)

(citation omitted).

(Footnote Continued)_______________________

108(a)(1)). Appellant's notice of appeal was due thirty days from June 18,
2019, which was Thursday, July 18, 2019. See id. (citing Pa.R.A.P. 903).
Therefore, Appellant’s notice of appeal was timely filed.

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Where, as in the instant case, the PCRA court has dismissed a petition

without an evidentiary hearing, we review the PCRA court’s decision for an

abuse of discretion. See Commonwealth v. Roney, 79 A.3d 595, 604 (Pa.

2013) (stating that “[t]o obtain reversal of a PCRA court’s decision to

dismiss a petition without a hearing, an appellant must show that he raised

a genuine issue of fact which, if resolved in his favor, would have entitled

him to relief, or that the court otherwise abused its discretion in denying a

hearing.” (citation and quotation marks omitted)). Pursuant to Rule of

Criminal Procedure 907, a PCRA court has the discretion to dismiss a PCRA

petition without a hearing if the court is satisfied that there are no genuine

issues concerning any material fact, that the defendant is not entitled to

PCRA relief, and that no legitimate purpose would be served by further

proceedings. See Pa.R.Crim.P. 907(1); Roney, 79 A.3d at 604.

Furthermore, this Court has explained that

[a] petitioner is not entitled to a PCRA hearing as a matter of
right; the PCRA court can decline to hold a hearing if there is no
genuine issue concerning any material fact and the petitioner is
not entitled to post-conviction collateral relief, and no purpose
would be served by any further proceedings. A reviewing court
on appeal must examine each of the issues raised in the PCRA
petition in light of the record in order to determine whether the
PCRA court erred in concluding that there were no genuine
issues of material fact and in denying relief without an
evidentiary hearing.

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

(citations omitted and some formatting altered). Further, “we may affirm

the PCRA court’s decision on any basis.” Commonwealth v. Charleston,

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94 A.3d 1012, 1028 (Pa. Super. 2014) (citation and quotation marks

omitted).

Brady Violation Claim

In Appellant’s first issue, he claims that the Commonwealth committed

a Brady violation when it failed to inform trial counsel of former detective

Gerald Pawling’s misconduct and conviction. Appellant’s Brief at 12-13.

Appellant argues that Pawling’s criminal conduct was “impeachment

evidence” because Pawling participated in the investigation of Suber’s

murder. Id. at 14-15. Lastly, Appellant contends that if Pawling’s criminal

conduct was presented at trial, “the jury should have seen the evidence

collected in a different light.” Id. at 16. Appellant concludes the PCRA court

erred in declining to hold a hearing on his Brady claim. Id.

The Commonwealth responds that no Brady violation occurred, as the

evidence at issue was available to Appellant from non-governmental

sources, including news coverage. Commonwealth’s Brief at 13-14. The

Commonwealth also notes that Appellant, in his second amended PCRA

petition, essentially conceded that the information about Pawling’s

convictions was publicly available. Id. at 14-15.

Our Supreme Court has explained that

[u]nder Brady and subsequent decisional law, a prosecutor has
an obligation to disclose all exculpatory information material to
the guilt or punishment of an accused, including evidence of an
impeachment nature. To establish a Brady violation, an
appellant must prove three elements:

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(1) the evidence at issue was favorable to the accused,
either because it is exculpatory or because it impeaches;
(2) the evidence was suppressed by the prosecution, either
willfully or inadvertently; and (3) prejudice ensued.

* * *

Brady does not require the disclosure of information that is not
exculpatory but might merely form the groundwork for possible
arguments or defenses, nor does Brady require the prosecution
to disclose every fruitless lead considered during a criminal
investigation. The duty to disclose is limited to information in
the possession of the government bringing the prosecution, and
the duty does extend to exculpatory evidence in the files of
police agencies of the government bringing the prosecution.
Brady is not violated when the appellant knew or, with
reasonable diligence, could have uncovered the evidence in
question, or when the evidence was available to the defense
from other sources.

Roney, 79 A.3d at 607-08 (citations omitted and some formatting altered);

see also Commonwealth v. Simpson, 66 A.3d 253, 264 (Pa. 2013)

(stating that Brady evidence “cannot have been equally available to the

defense, and cannot have been discoverable through the exercise of

reasonable diligence” (citations omitted)). Our Supreme Court has held that

because criminal records are public records readily obtainable by the defense

from non-governmental sources, they cannot serve as the basis for a Brady

claim. Commonwealth v. Tharp, 101 A.3d 736, 751-52 (Pa. 2014).

Instantly, the PCRA court, in rejecting Appellant’s Brady claim,

observed that Appellant’s petition acknowledged that Pawling’s guilty plea in

July of 2014 received “a large amount of news coverage.” Rule 907 Notice,

3/13/19, at 4 (unpaginated) (quoting Second Am. PCRA Pet., 10/10/18, at

10). The PCRA court concluded that

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[Appellant] has, in effect, conceded that this claim is not a
cognizable Brady violation. . . . An event which received “a
relatively large amount of news coverage,” and was therefore
known to the public at large, is not in the sole possession of the
Commonwealth. Moreover, a person’s conviction of a crime is
not “evidence” in the “possession” of any Commonwealth agency
- it is a matter of public record. The court cannot find a Brady
violation, as this evidence was freely available to the defense
prior to trial.

Id.

Based on our review of the record, we discern no error in the PCRA

court’s decision. See Grayson, 212 A.3d at 1051; Roney, 79 A.3d at 603.

Pawling’s guilty plea, which occurred several months prior to Appellant’s

trial, was not only a matter of public record but also, according to Appellant,

received a large amount of new coverage.6 Therefore, the evidence of

Pawling’s misconduct and conviction was equally available to the defense.

See Tharp, 101 A.3d at 751-52; Simpson, 66 A.3d at 264. Accordingly,

____________________________________________

6 Appellant argued the following in his second amended PCRA petition:

It is expected, and would be appropriate for the Commonwealth
to argue that Gerald Pawling plead [sic], amidst a relatively large
amount of news coverage, to theft, tampering with evidence,
forgery, and other crimes, which would cause this not to be a
Brady issue at all, at least the filing of criminal charges in 2013
onward to the guilty plea before this [c]ourt in July 2014, this
was instead a matter trial counsel ought to have known of and
raised as impeachment evidence. See Exhibit D (Docket 3205-
2013), E (Docket 1000-2014), F (Docket 1006-2014).

Second Am. PCRA Pet., 10/10/18, at 10.

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Appellant was not entitled to relief on his Brady claim. See Roney, 79 A.3d

at 607-08.

Trial Counsel Ineffectiveness For Failure to Investigate

Appellant’s second argument is that trial counsel was ineffective for

failing to investigate, discover, and use Pawling’s misconduct and conviction

during Appellant’s trial. Appellant’s Brief at 17-18. As to the arguable merit

and reasonable basis prongs of his arguments, Appellant claims that “the

crimes Pawling plead [sic] to would unquestionably be admissible to impeach

him and anything that was submitted as discovery materials which had his

name attached to it.” Id. at 18. Appellant asserts that calling Pawling

“would have been dramatic and, was absolutely possible given the subpoena

power of the court and the fact that Pawling signed off on a number of the

reports and investigation documents which brought [Appellant] to this trial.”

Id. at 18. Appellant further argues that trial counsel submitted a letter

indicating that he did not recall being aware of Pawling’s convictions at the

time of trial, despite the publicity surrounding Pawling. Id. at 18-19 (citing

Second Am. PCRA Pet., 10/10/18, Ex. C,).

As to prejudice, Appellant claims that “Pawling’s convictions would

have called into question the evidence collected and the witnesses’

testimony, such that . . . the outcome of the trial would have been

different.” Id. at 19. More specifically, Appellant argues that the jury would

have seen the collection of evidence in a different light if the jury had heard

that Pawling stole from the evidence room in an unrelated case. Id. at 19-

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20. Further, Appellant argues that due to Pawling’s criminal convictions,

witnesses that Pawling interviewed or “developed as informants,” such as

Devalia, cannot be considered reliable. Id. at 20.

The Commonwealth responds that Appellant’s claim lacks arguable

merit. The Commonwealth acknowledges that a police witness may be

“cross-examined about misconduct as long as the wrongdoing is in some

way related to the defendant’s underlying criminal charges and establishes a

motive to fabricate.” Commonwealth’s Brief at 18 (citing Commonwealth

v. Peetros, 535 A.2d 1026 (Pa. 1987)) (emphasis omitted). The

Commonwealth argues that because Appellant has not shown that Pawling

committed any crime or wrongdoing with respect to Appellant’s case,

evidence of Pawling’s unrelated police misconduct would have been

inadmissible. Id. at 20 (citing, inter alia, Commonwealth v. Boczkowski,

846 A.2d 75 (Pa. 2004)). The Commonwealth also argues that Appellant did

not establish prejudice because Appellant did not “identify or specify one

specific instance in the record of how impeaching Pawling could have altered

the evidence, and thus changed the outcome of the trial” and failed to

demonstrate “specifically the manner in which [Pawling’s] testimony could

have altered the outcome of his trial.” Id. at 16, 19 (citations omitted).

The PCRA court explained its decision to dismiss Appellant’s claims as

follows:

[Appellant] only speaks in broad generalizations about the
impact of raising Pawling’s convictions, stating that such
evidence “would have called into question the evidence collected

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and the witnesses’ testimony, such that we believe the outcome
of the trial would have been different.” [Appellant] does not
provide any further specificity on precisely what evidence in this
case would be rendered questionable by Pawling’s conduct, nor
does he provide the identity of any witness or witnesses who
would be open to cross-examination on any improper behavior
that Pawling may have exhibited relating to this case. As a
result, any evidence of Pawling’s behavior would have been
“unrelated to the present matter and irrelevant,” and counsel
cannot be ineffective for failing to introduce irrelevant evidence.
[Appellant] further argues that “to call the former detective as a
witness—while he is serving jail time for theft from the evidence
room—would have been dramatic[.]” This position is completely
unsupported in law, as the perceived “drama” of a court
proceeding is not in any way determinative of its legal propriety.

Rule 907 Notice, 3/13/19, at 5 (unpaginated).

In reviewing Appellant’s claim, we are guided by the following

principles. It is presumed that the petitioner’s counsel was effective, unless

the petitioner proves otherwise by a preponderance of the evidence.

Commonwealth v. Williams, 732 A.2d 1167, 1177 (Pa. 1999). Therefore,

a petitioner must demonstrate

ineffective assistance of counsel which, in the circumstances of
the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could
have taken place. The burden is on the defendant to prove all
three of the following prongs: (1) the underlying claim is of
arguable merit; (2) that counsel had no reasonable strategic
basis for his or her action or inaction; and (3) but for the errors
and omissions of counsel, there is a reasonable probability that
the outcome of the proceedings would have been different.

Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019)

(citations and quotation marks omitted).

It is well settled that

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[c]ounsel has a general duty to undertake reasonable
investigations or make reasonable decisions that render
particular investigations unnecessary. . . . The duty to
investigate, of course, may include a duty to interview certain
potential witnesses; and a prejudicial failure to fulfill this duty,
unless pursuant to a reasonable strategic decision, may lead to a
finding of ineffective assistance.

Commonwealth v. Johnson, 966 A.2d 523, 535-36 (Pa. 2009) (citations

omitted).

In order to obtain relief on a claim of ineffective assistance of counsel

for failing to call a potential witness, a PCRA petitioner must establish that

(1) the witness existed; (2) the witness was available to testify
for the defense; (3) counsel knew of, or should have known of,
the existence of the witness; (4) the witness was willing to
testify for the defense; and (5) the absence of the testimony of
the witness was so prejudicial as to have denied the defendant a
fair trial.

Id. at 536 (citation omitted).

We add that our “case law permits a police witness to be cross-

examined about misconduct as long as the wrongdoing is in some way

related to the defendant’s underlying criminal charges and establishes a

motive to fabricate.” Commonwealth v. Bozyk, 987 A.2d 753, 757 (Pa.

Super. 2009) (citing, inter alia, Peetros, 535 A.2d 1026). “However, if the

prior police behavior is unrelated to the present matter and irrelevant, the

trial court is permitted to restrict questioning on the prior incident.” Id.

(citations omitted). Our Supreme Court in Peetros granted the appellants a

new trial because the trial court improperly restricted cross-examination to

exclude the prior disciplinary action of a police witness involved in bribery

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activities with appellants. Peetros, 535 A.2d at 1034; see also

Commonwealth v. Dawson, 405 A.2d 1230 (Pa. 1979) (holding that

defendant was improperly denied his right to cross-examine police witness

about his motive to fabricate evidence of defendant’s confession in order to

obtain conviction where there was an allegation that the officer beat co-

defendant with a nightstick); Commonwealth v. Sullivan, 402 A.2d 1019

(Pa. 1979) (holding that trial court improperly denied defendant the right to

cross-examine police officer who faced suspension based on the outcome at

defendant’s trial); Commonwealth v. Shands, 487 A.2d 973 (Pa. Super

1985) (reversing conviction and remanding for a new trial because

defendant was denied the right to cross-examine arresting police officers

regarding ongoing federal and state investigations into their conduct in

similar cases which included racial bias, false arrests, and perjury; and

where the prosecutor doubted their veracity in prior cases). Accord United

States v. Miles, 480 F.2d 1215 (2d Cir. 1973) (holding that the defendant

was properly permitted to cross-examine a police detective about pending

charges and suspension where the detective may have been motivated to

testify against defendant to ingratiate himself with his superiors).

Here, the record demonstrates that Pawling’s role in the murder

investigation began with photographing the crime scene. N.T. Trial,

9/26/14, at 92-94; Second Am. PCRA Pet., 10/10/18, Ex. B. Pawling was

present at Suber’s autopsy, along with Detective Kenneth Beam. N.T. Trial,

09/26/14, at 80-86; Second Am. PCRA Pet., 10/10/18, Ex. B.

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Additionally, Pawling interviewed Grove, Suber’s widow, on October

22, 2006, at which time she selected a photo of Devalia from a photo array

and identified him as the shooter. N.T. Trial, 9/22/14, at 111-15; N.T. Trial,

09/23/14, at 77-78; Exhibits C-44, C-44A; Second Am. PCRA Pet.,

10/10/18, Ex. B. In January of 2009, Grove identified Coxry as the shooter

from a different photo array. N.T. Trial, 9/22/14, at 115-17; Exhibit C-44B.

Grove testified at trial that she initially misidentified Devalia because Suber’s

brother showed her a picture of Devalia with Appellant. N.T. Trial, 9/22/14,

at 113-15.

On November 10, 2006, Pawling went to the Regal Cinemas to follow

up on Detective Kevin Campbell’s examination of security footage from

October 20, 2006. Second Am. PCRA Pet., 10/10/18, Ex. B. Pawling

determined that the theater’s security system had already recorded over the

footage from October 20, 2006. Id.

Pawling was one of four police officers who served a search warrant on

Appellant’s residence in Caln Township. Id.; N.T. Trial, 09/29/14, at 79.

During the execution of that search warrant, police recovered a box of .45

caliber bullets and a .38 caliber revolver. N.T. Trial, 09/26/14, at 121-27;

N.T. Trial, 09/29/14, at 79, 92.

The record shows that the evidence presented at trial established that

Appellant possessed a .45 caliber pistol, the same caliber used to shoot

Suber. Donte Carter testified that Appellant previously solicited him to kill

Suber. N.T. Trial, 09/25/14, at 7, 9. Witness testimony of Devalia indicated

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that Appellant conspired with other individuals to shoot Suber, and Appellant

was in contact with his co-conspirators after the shooting occurred. N.T.

Trial, 9/24/14, at 118-22, 148-55. Lastly, Rolanda Spann testified that

when Appellant heard that Devalia was arrested in connection to the murder,

Appellant told her that he would admit to everything to prevent Devalia from

being falsely convicted. N.T. Trial, 09/25/14, at 226-27, 243-44.

Our review of the record reveals that although trial counsel was aware

of the criminal charges that were filed against former detective Pawling, trial

counsel did not undertake a reasonable investigation into the nature of these

charges and their potential impeachment value.7 See Johnson, 966 A.2d at

535-36. Appellant has shown that trial counsel knew of, or should have

known of, the existence of Pawling as a witness. See id. at 536. However,

____________________________________________

7 Trial counsel stated in his letter that he had a “vague recollection of Mr.
Pawling being arrested for crimes relating to fraudulently making an
insurance claim, or claims, I do not recall the Commonwealth advising me
that [] Pawling was charged with stealing evidence from the Coatesville
Police Department, or anything that related to any evidence in [Appellant’s]
case.” Second Am. PCRA Pet., 10/10/18, Ex. C.

We note that it is troubling that Appellant’s trial counsel “did not recall being
aware” of the charges against Pawling, which resulted in Pawling’s guilty
plea to theft, tampering with evidence, forgery, and other crimes, which,
according to the trial court and the Commonwealth, and, in part, admitted to
by Appellant, were highly publicized. See e.g., Commonwealth v. Miller,
987 A.2d 638, 666 (Pa. 2009) (stating that the “reasonableness of a
particular investigation depends upon evidence known to counsel, as well as
evidence that would cause a reasonable attorney to conduct a further
investigation.” (citations omitted)).

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Appellant has not shown that Pawling was willing to testify for the defense.

See id. Therefore, Appellant cannot establish that his claim that Pawling

should have been called as a witness had arguable merit. See id.; see also

Sandusky, 203 A.3d at 1043.

Further, based on Pawling’s limited role in this case, as compared to

the overwhelming and properly admitted evidence of Appellant’s guilt

presented at trial, we conclude that Appellant has failed to prove unfair

prejudice that would have changed the outcome of the trial based on trial

counsel’s failure to present Pawling’s wrongdoing, which Appellant has not

shown to be related to his case. Therefore, trial counsel was not ineffective.

See Sandusky, 203 A.3d at 1043. Accordingly, for the reasons herein,

Appellant’s claim of ineffectiveness of trial counsel for failing to call Pawling

as a witness fails.

Based on the foregoing, we conclude that the trial court did not abuse

its discretion in denying Appellant relief on this claim. See Grayson, 212

A.3d at 1051; Roney, 79 A.3d at 603.

Trial Counsel Ineffectiveness for Failure to Call Witnesses

Appellant’s final argument is that trial counsel was ineffective for not

calling several witnesses. Appellant’s Brief at 21-24. Specifically, Appellant

contends that trial counsel failed to call Shamone Woods, Corporal Jack Wall,

a ballistics expert, and either Jason Smith or Detective Kevin Dykes.

Appellant argues that these witnesses would have testified that Appellant did

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not possess the firearm used to commit the murder, and that he was not the

“mastermind” of the conspiracy to kill Suber. Id. at 22-23.

The Commonwealth responds that the PCRA court properly dismissed

Appellant’s claims because PCRA counsel did not submit signed certifications

as to each of these intended witnesses as required by 42 Pa.C.S §

9545(d)(1); Pa.R.Crim.P 902(A)(15). Commonwealth’s Brief at 23. The

Commonwealth argues that Appellant’s failure to include the witness

certifications was fatal to his claim. Id. at 23-24 (citations omitted).

There are two requirements for relief on an ineffectiveness claim
for a failure to present witness testimony. The first requirement
is procedural. The PCRA requires that, to be entitled to an
evidentiary hearing, a petitioner must include in his PCRA
petition “a signed certification as to each intended witness
stating the witness’s name, address, date of birth and substance
of testimony.” 42 Pa.C.S. § 9545(d)(1); Pa.R.Crim.P.
902(A)(15).

Commonwealth v. Reid, 99 A.3d 427, 438 (Pa. 2014) (some citations

omitted). This Court has held that where a petitioner “failed to provide any

certification with respect to potential witnesses, the [PCRA c]ourt clearly did

not abuse its discretion by failing to conduct an evidentiary hearing.”

Commonwealth v. Brown, 767 A.2d 576, 583 (Pa. Super. 2001).

Initially, we note that although Appellant included a list of witnesses

that he intended to call at the evidentiary hearing, the PCRA court found that

this information was “not sufficient to satisfy the procedural requirements for

a PCRA hearing.” Rule 907 Notice, 3/13/19, at 3 (unpaginated).

Specifically, the PCRA court found that “[Appellant] had failed to provide a

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signed certification as to each intended witness, and for that reason alone he

is not entitled to a hearing.” Id. (quotation marks omitted). The PCRA

court, however, chose to address the merits of Appellant’s claim in its

1925(a) opinion, and concluded that Appellant’s claims were meritless. Id.

The record shows that Appellant’s second amended PCRA petition does

not contain a certification signed either by Appellant or his counsel with

respect to his proposed witnesses as required by 42 Pa.C.S. § 9545(d)(1);

Pa.R.Crim.P. 902(A)(15). The petition contains a witness list, but it lacks

the identifying information and summary of witness’s testimony. See

Pa.R.Crim.P 902(A)(15). As Appellant failed to provide such certifications

with respect to potential witnesses, the PCRA court did not abuse its

discretion in declining to hold an evidentiary hearing. See Brown, 767 A.2d

at 583.

Although the PCRA court dismissed Appellant’s petition without an

evidentiary hearing, the PCRA court addressed Appellant’s specific

ineffectiveness claims in its Rule 1925(a) opinion. Therefore, we will briefly

examine the merits of those claims. We have already set forth the standard

for establishing such a claim above. See Johnson, 966 A.2d at 536; see

also Reid, 99 A.3d at 438.

Appellant first argues that trial counsel failed to call Corporal Wall, a

ballistics expert who prepared a report concluding that the bullets recovered

from Suber’s body matched bullets recovered in connection with the

attempted murder of Curtis Self. Appellant’s Brief at 21. Appellant’s next

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proposed witness, Jason Smith, gave a statement to Detective Kevin Dykes

in which he stated that on or about September 12, 2006, he saw Shamone

Woods ask Keisha Washington to conceal a silver pistol used in the shooting

of Curtis Self. Id. at 22; see also Second Am. PCRA Pet., 10/10/18, Ex. G.8

Lastly, Appellant proposed calling Shamone Woods as a witness to testify

that Clarence Milton “had no access to [Appellant], then Milton would have

been completely discredited at trial.” Id. at 22-23. Appellant argues that if

these witnesses had been called at trial, they would have demonstrated that

Appellant was not the “mastermind” of the conspiracy to murder Suber. Id.

at 23.

The Commonwealth responds that Appellant is not entitled to relief on

his claim of ineffective assistance of counsel. According to the

Commonwealth, Appellant did not establish that the proposed witnesses

were willing to testify on Appellant’s behalf. Commonwealth’s Brief at 22,

24. Additionally, the Commonwealth argues that Appellant has not

established that trial counsel was aware of these potential witnesses nor

their purported testimony. Id. at 24.

We now turn to Appellant’s claims with respect to the individual

witnesses.

____________________________________________

8 Appellant suggested that in the alternative, trial counsel should have called
Detective Dykes to testify about his interview with Smith. Appellant’s Brief
at 21. Appellant does not present any argument regarding Dykes as a
potential witness.

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According to Appellant, because Corporal Wall “is a professional . . . he

would have been available to testify if given reasonable notice, and certainly

had no reason not to testify as to the information in his report.” Id. at 21-

22. Appellant argues that his trial counsel knew about all of these proposed

witnesses, and that they were available and willing to testify. Id. at 22.

Appellant argues that his trial counsel had no reasonable basis for failing to

call these witnesses to impeach Devalia, who testified that Appellant had

hidden a gun in his home, and Clarence Milton, who testified that Appellant

ordered and paid for the murder of Suber. Id. at 9-10, 22-24. Appellant

argues that he was prejudiced by trial counsel’s failure to call these

witnesses because they would have discredited Devalia and Milton. Id. at

24.

With respect to Appellant’s claim regarding the failure to call Corporal

Wall, the PCRA court explained:

In his petition, [Appellant] describes, inter alia, the witnesses
that should have been called by counsel at trial. However,
[Appellant’s] argument consists completely—sometimes explicitly
—of [Appellant’s] mere assumption that a given witness would
be available and willing to testify on [Appellant’s] behalf. The
first witness is a ballistics expert, Corporal Jack Wall of the
Pennsylvania State Police, who prepared a report which,
according to [Appellant], “states conclusively that the bullets
from the shooting of [] Suber (10/21/06) matched the bullets
from the prior shooting of and attempted murder of Curtis Self
(9/12/06).” (The ballistics report in question is attached to the
Second Amended Petition as “Exhibit A.”) With regard to
Corporal Wall’s ballistics report, [Appellant] states that “[t]his
ballistics report was available to the defense, therefor[e] Mr.
Harmelin is presumed to have knowledge of it. The writer of the
report is a professional, we assume he would have been

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available to testify if given reasonable notice[.]” No evidence
has been presented that this was the case.

Rule 907 Notice, 3/13/19, at 5 (unpaginated).

Based on our review of the record, we conclude that the PCRA court

did not abuse its discretion in rejecting Appellant’s claim regarding Corporal

Wall. Appellant did not establish that Corporal Wall was available to testify

at trial. Instead Appellant only provided the conclusory statement that

because Wall “is a professional, we assume he would have been available to

testify if given reasonable notice, and certainly had no reason not to testify

as to the information in his report.” Appellant’s Brief at 21-22. This is

insufficient to establish the element of availability by a preponderance of the

evidence. See Johnson, 966 A.2d at 536; see also Williams, 732 A.2d at

1177.

Next, as to Smith, Appellant argues “[t]here is no indication that Smith

would not have been willing and available to testify to the information he

gave in the police interview.” Appellant’s Brief at 22.

The PCRA court rejected Appellant’s arguments regarding Smith’s

testimony, concluding that they “lack[ed] any sort of specificity, and merely

reflect[ed] [Appellant’s] uncorroborated hope that certain witnesses would

have testified on his behalf, and therefore [did] not rise to the level required

to sustain ineffective assistance of counsel.” Rule 907 Notice, 3/13/19, at 6

(unpaginated).

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We agree with the PCRA court’s conclusion. Appellant has not shown

that trial counsel knew or should have known about Smith’s statement,

which he gave in connection with an unrelated shooting. Further, Appellant

has not shown that Smith was available and willing to testify. Appellant

relies on the assumption that Smith would be willing and available to testify

and that his testimony would be consistent with his statement to the police.

This is insufficient to establish ineffective assistance of counsel by a

preponderance of the evidence. See Johnson, 966 A.2d at 536; see also

Williams, 732 A.2d at 1177.

Finally, Appellant argues that his trial counsel failed to call Shamone

Woods to testify that Clarence Milton did not have “access to” Appellant.

Appellant’s Brief at 9, 22-23.

The PCRA court addressed Appellant’s claim as follows:

Likewise, [Appellant] asserts that trial counsel should have called
[Appellant’s] co[-]conspirator Shamone Woods, and that “Mr.
Woods ... demonstrates his willingness to answer [questions as a
witness] by the affidavit attached hereto.” As stated above, no
such affidavit is attached to the petition, therefore we cannot
ascertain any intent by Mr. Woods to have testified on behalf of
[Appellant] at trial.

Rule 907 Notice, 3/13/19, at 5-6 (unpaginated).

We agree with the PCRA court that Appellant did not establish that trial

counsel was ineffective for failing to call Woods as a witness. Further,

Appellant did not demonstrate that Woods was available and willing to testify

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on his behalf. Therefore, Appellant’s claim fails. See Johnson, 966 A.2d at

536; see also Williams, 732 A.2d at 1177.

For the foregoing reasons, we affirm the PCRA court’s order dismissing

Appellant’s second amended PCRA petition without a hearing. See Roney,

79 A.3d at 604.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/20/20

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