Com. v. Gibbs, A.

J-A21024-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AMIN GIBBS :
:
Appellant : No. 3426 EDA 2019

Appeal from the PCRA Order Entered November 12, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004779-2013,
CP-51-CR-0004781-2013

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AMIN GIBBS :
:
Appellant : No. 3427 EDA 2019

Appeal from the PCRA Order Entered November 12, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004779-2013,
CP-51-CR-0004781-2013

BEFORE: KUNSELMAN, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY NICHOLS, J.: Filed: December 23, 2021

Appellant Amin Gibbs appeals from the order denying his timely first

Post Conviction Relief Act1 (PCRA) petition without a hearing. Appellant
____________________________________________

* Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.
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contends that his trial counsel was ineffective for failing to challenge the

discretionary aspects of his sentence, and for declining to introduce evidence

that Appellant did not own a cell phone that linked him to the crime scene.

Appellant also argues that he is entitled to relief based on after-discovered

evidence relating to the misconduct of former Detective Philip Nordo. We

affirm.

A previous panel of this Court summarized the facts and procedural

history of this case as follows:

On October 24, 2012, [Appellant] had an argument with Devoun
Handy outside West Park Homes, a housing project located at 300
Busti Street in West Philadelphia. During the altercation,
[Appellant] pulled out two firearms and began shooting at Handy.
Handy fled, and escaped unharmed.

* * *

Devoun Handy gave a statement to police in which he described
the October 24, 2012, shooting. Handy stated he and [Appellant]
“had words at 300 Busti Street. [Appellant] came back out of the
building with two handguns and he told me to stop playing with
him. I started backing up and he started shooting at me. I ran
and he ran off.” Anthony Wells also told the police he saw
[Appellant] shoot at Handy on October 24, 2012. . . .
[Subsequently,] several witnesses gave statements to the police
indicating they were aware [Appellant] had attempted to shoot
Handy . . . at 300 Busti Street.

Other evidence corroborated the witnesses’ statements. At
around 5:10 p.m. on October 24, 2012, police received multiple
reports of a shooting. [When the police arrested Appellant, they
recovered a cell phone with the phone number (267) 290-0026
from the residence in which they arrested Appellant. N.T. Trial,
12/4/14, at 23; N.T. Trial, 12/5/14, at 82-83, 91. Police later
obtained a warrant for cell phone records from T-Mobile and to
forensically examine that phone’s contents. N.T. Trial, 12/4/14,
at 18-21.] The FBI’s analysis of cell phone records placed
[Appellant] near the location of the shooting on that date.

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Further, [Appellant] sent several text messages shortly after the
shooting indicating he was the perpetrator and he was hiding from
the police. For instance, [Appellant] sent the following text
messages to a contact listed as “Nye-Nye” the night of the
shooting: “My name in the air. Heavy. Like on the tip. 5-0. No.”;
“He been asking for it. He begged for that. He lucky my s--t
locked up on me.”; “Last thing do the cops know my handle?”
Nye-Nye also sent [Appellant] a text message stating: “UK . . .
anything I hear and who is snitching, I got your back, cuz. Just
be safe out there, please, and I love you.” On October 28, 2012,
[Appellant] sent the following text message: “They talking still,
Nye-Nye?” Nye-Nye responded: “Nah, they not talking. I don’t
think the cops looks for you either. And Winky says call her.”[2]

Commonwealth v. Gibbs, 1711 EDA 2016, 2018 WL 1516366, at *1, *4 (Pa.

Super. filed Mar. 28, 2018) (unpublished mem.) (citations and footnote

omitted).

In the early morning hours of November 17, 2012, another
shooting incident occurred on Holden Street outside West Park
Homes, where Handy was attending a party. While Handy was
standing outside with several others, a Chevrolet Impala
approached them and an individual in the passenger seat started
firing a gun in their direction. One of the people in the group,
Zykia Sanders, was fatally struck by a bullet. In statements to

____________________________________________

2 In several of the text messages sent from the cell phone with the number
ending in 0026, the sender identifies himself as “Min.” N.T. Trial, 12/5/14, at
107-08. Several witnesses testified that Appellant has the nickname “Min”,
also spelled “Meen”. N.T. Trial, 12/2/14, at 160; N.T. Trial, 12/3/14, at 205,
216, 220; N.T. Trial, 12/4/14, at 135. Bruce Gibbs, a relative of Appellant’s,
voluntarily turned his cell phone over to the police for examination. The
number (267) 290-0026 was saved in Bruce Gibbs’s contacts under the
nickname “Meen”. N.T. Trial, 12/4/14, at 16-18. Bruce Gibbs did not testify
because he had passed away prior to Appellant’s trial. N.T. Trial, 12/3/14, at
252.

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the police, witnesses identified [Appellant] as the shooter in both
incidents.[3]

On November 23, 2012, police went to arrest [Appellant] at the
home of his girlfriend, Rasheedah Malone. When Malone
answered the door, the arresting officer heard [Appellant] run
upstairs. The officer ordered [Appellant] to return downstairs.
[Appellant] complied and was taken into custody. The police
subsequently secured and executed a search warrant at the
residence. They recovered from the second–floor front bedroom
a .22–caliber revolver, a sawed-off shotgun, a black [cell phone]
in a blue rubber case, and mail addressed to [Appellant]. [One of
the officers involved in this search was now-former Detective
Nordo.]

The Commonwealth charged [Appellant] with aggravated assault,
persons not to possess firearms, carrying a firearm on a public
street in Philadelphia, and related offenses in connection with the
October 24, 2012, shooting (Docket No. 4781–2013); murder and
related offenses in connection with the November 17, 2012,
shooting (Docket No. 4782-2013); and persons not to possess
firearms and prohibited offensive weapons with respect to the
firearms recovered during the November 23, 2012, search of
Malone’s house (Docket No. 4779-2013). . . . Following a
consolidated trial, a jury convicted [Appellant] at Docket No.
4781-2013 of aggravated assault, persons not to possess
firearms, and carrying a firearm on a public street in Philadelphia.
At Docket No. 4779-2013, the jury convicted [Appellant] of the
separate charge of persons not to possess firearms. [Appellant]

____________________________________________

3 At Appellant’s trial, J.C. Buford, a witness to the shooting on November 17,
2012, recanted his statement to the police identifying Appellant as the shooter
and testified that he did not see who the shooter was. N.T. Trial, 12/3/14, at
107, 114-21; see also Commonwealth’s Ex. 9 (Buford’s November 24, 2012
statement). Buford claimed that detectives questioned him continuously for
about thirty-five hours. N.T. Trial, 12/3/14, at 130-32. Buford denied signing
his name and writing the date and time on the last page of the statement. Id.
at 133. According to Detective John Golphin, now-former Detective Philip
Nordo took part in the questioning of Buford, and Nordo had spoken to Buford
before Buford came to the Homicide Unit to give a statement. N.T. Trial,
12/5/14, at 35-38, 46; see also Commonwealth’s Ex. 9 at 1. Nordo did not
testify at Appellant’s trial.

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was acquitted of all other charges[, including all charges at Docket
No. 4782-2013 arising out of the November 17, 2012, shooting].

On April 8, 2015, the trial court sentenced [Appellant] to an
aggregate term of 17½ to 35 years’ imprisonment. [Appellant]
filed a timely post-sentence motion challenging the weight of the
evidence. The motion was denied by operation of law on August
11, 2015. [Appellant did not file a direct appeal.] On February 5,
2016, [Appellant] filed a timely [PCRA] petition . . . requesting
reinstatement of his direct appeal rights nunc pro tunc. The PCRA
court reinstated [Appellant’s] direct appeal rights on May 6, 2016.

Id. at *1-2 (footnote omitted).

Appellant filed a timely appeal and Appellant’s counsel subsequently

filed an Anders4 brief discussing the sufficiency and weight of the evidence,

the denial of Appellant’s motion to suppress, and the discretionary aspects of

Appellant’s sentence. Id. at *1. This Court concluded that Appellant’s

discretionary sentencing claim was waived because he failed to raise that issue

“at sentencing or in a timely filed post-sentence motion.” Id. at *8. Appellant

filed a response to counsel’s Anders brief, raising several additional issues,

including that the Commonwealth fabricated text messages associated with

Appellant’s cell phone number. Id. at *9. Ultimately, this Court concluded

that Appellant’s claim of fabricated evidence was meritless because it relied

on a mischaracterization of the record, and Appellant did not present any

evidence to support his allegation. Id. This Court affirmed the judgment of

sentence on March 28, 2018, and granted Appellant’s counsel leave to

____________________________________________

4Anders v. California, 386 U.S. 738 (1967); see also Commonwealth v.
Santiago, 978 A.2d 349, 361 (Pa. 2009).

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withdraw. Id. Appellant did not file a petition for allowance of appeal with

our Supreme Court.

On February 22, 2017, after his direct appeal rights were reinstated

nunc pro tunc and while his direct appeal was still pending, Appellant filed a

pro se first5 PCRA petition. In his petition Appellant raised a general claim

that the trial court committed an abuse of discretion; Appellant also

specifically claimed that the trial court erred by improperly imposing

consecutive sentences for aggravated assault and carrying a firearm on a

public street in Philadelphia when the offenses arose from the same act, and

that the trial court imposed illegal fines and costs without considering his

ability to pay, among other issues. Pro Se PCRA Pet., 2/22/17, at 3, 53, 62-

64 (renumbered). Appellant filed an amended pro se PCRA petition on August

8, 2017. On March 27, 2018, the PCRA court issued a Pa.R.Crim.P. 907 notice

of intent to dismiss the petition which stated that Appellant’s PCRA petition

had been prematurely filed.

After this Court affirmed Appellant’s judgment of sentence, the PCRA

court appointed Valerie Palazzo, Esq., to represent Appellant for his PCRA

proceedings. Appellant filed a motion to proceed pro se on May 21, 2018.
____________________________________________

5 A PCRA petition filed after the reinstatement of an appellant’s direct appeal
rights nunc pro tunc is considered a first PCRA petition for timeliness purposes.
See Commonwealth v. Turner, 73 A.3d 1283, 1286 (Pa. Super. 2013)
(explaining “when a PCRA petitioner’s direct appeal rights are reinstated nunc
pro tunc in his first PCRA petition, a subsequent PCRA petition will be
considered a first PCRA petition for timeliness purposes” (citations and
footnote omitted)).

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The PCRA court conducted a hearing pursuant to Commonwealth v. Grazier,

713 A.2d 81 (Pa. 1998), on June 8, 2018, and granted Appellant’s request to

proceed pro se.6

Appellant then filed several amended pro se PCRA petitions. In the

petition filed on September 20, 2018, Appellant asserted that his sentence

was based on “evid[ence] that the Com[monwealth] knew or should have

known as false[.]” Am. Pro Se PCRA Pet., 9/20/18, at 3. In the accompanying

memorandum of law, Appellant raised, among others, a claim of ineffective

assistance of trial counsel for not introducing evidence that Appellant was

incarcerated at the time the cell phone with the number ending in 0026 was

activated. Pro Se Mem. of Law in Supp. of PCRA, 9/20/18, at 5-6. Appellant

also raised a claim of after-discovered evidence regarding former Detective

Nordo’s misconduct. Id. at 7-8.

The Commonwealth filed several answers to Appellant’s amended PCRA

petitions. On October 10, 2019, the PCRA court filed its Rule 907 notice of

intent to dismiss the petition without a hearing. Appellant filed a timely

response to the 907 notice. The PCRA court dismissed Appellant’s PCRA

petitions on November 12, 2019.

____________________________________________

6 The certified record does not contain a transcript of the June 8, 2018 Grazier
hearing. However, the order permitting counsel to withdraw states “Grazier
hearing held. [Appellant’s] motion to proceed pro se is granted. Attorney
Palazzo is withdrawn.” Order, 6/8/18 (formatting altered). Because Appellant
is not challenging the PCRA court’s ruling in the Grazier hearing, the absence
of the transcript does not impede our review.

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Appellant then filed timely pro se notices of appeal at each of the trial

court dockets.7 The PCRA court did not order Appellant to file a concise

statement of issues pursuant to Pa.R.A.P. 1925(b). The PCRA court filed an

opinion pursuant to Rule 1925(a), addressing Appellant’s claims that trial

counsel was ineffective for failing to challenge the admissibility of cell phone

records from T-Mobile and that trial counsel secretly undermined Appellant’s

case on behalf of the Commonwealth. See PCRA Ct. Op., 5/19/20, at 3, 5-6.

The PCRA court also addressed Appellant’s claim of after-discovered evidence.

See id. at 6-7.

Appellant subsequently filed an application with this Court requesting

appointed counsel. This Court remanded the matter to the PCRA court and on

September 30, 2020, the PCRA court appointed Daniel A. Alvarez, Esq., to

represent Appellant.8

Appellant raises three issues for our review:

1. Was trial counsel ineffective for failing to preserve the
sentencing issue in a motion to reconsider sentence where the
trial court abused discretionary aspects of sentencing, whereas
it fashioned a sentence on three charges that were the
statutory maximums and upward departures to the Sentencing
Guidelines, and whereas they were entered consecutively to
one another, creating an excessive aggregate sentence?

____________________________________________

7 Appellant complied with our Supreme Court’s decision in Walker by filing
separate notices of appeal under each trial court docket number. See
Commonwealth v. Walker, 185 A.3d 969, 971 (Pa. 2018). We consolidated
these matters sua sponte on February 5, 2020.

8 Attorney Alvarez filed an appellate brief on behalf of Appellant.

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2. Was trial counsel ineffective for failing to introduce evidence
that Appellant was in custody at the time the cell phone that
was tied to him was activated?

3. Did the PCRA court err in dismissing Appellant’s PCRA petition
as Appellant proffers that had after-discovered evidence with
regards to disgraced former homicide Detective Philip Nordo
been made known to the jury it would have changed the trial’s
result?

Appellant’s Brief at 6.

Ineffective Assistance of Counsel - Sentencing

In his first issue, Appellant argues that trial counsel was ineffective for

failing to preserve a challenge to the discretionary aspects of his sentence.

However, before we reach the merits of Appellant’s claim, we must determine

whether he has preserved it for review.

Here, the Commonwealth argues that Appellant waived this claim

because he did not raise it before the PCRA court. Commonwealth’s Brief at

11-12. The Commonwealth asserts that Appellant’s “vague and disjointed

references to an abuse of discretion and objections to his sentence do not

create a specific claim that [trial] counsel was ineffective for failing to preserve

a challenge to the discretionary aspects of his sentence.” Id. at 12.

Appellant argues that he raised this issue with the PCRA court in his

February 22, 2017, and September 20, 2018 pro se filings. Appellant’s Brief

at 27-28. Specifically, Appellant refers to his claims that (1) the trial court

committed an abuse of discretion, id. (citing Pro Se PCRA Pet., 2/22/17, at

3); (2) the trial court imposed illegal fines, id. at 28 (citing Pro Se PCRA Pet.,

2/22/17, at 62-64); (3) the trial court imposed consecutive sentences, id.

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(citing Pro Se PCRA Pet., 2/22/17, at 53); and (4) the trial court entered “a

sentence based on evid[ence] that the Com[monwealth] knew or should have

known was false,” id. (quoting Am. Pro Se PCRA Pet., 9/20/18, at 3 (quotation

marks omitted)).

It is well settled that “[i]ssues not raised in the lower court are waived

and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a); see also

Commonwealth v. Roney, 79 A.3d 595, 611 (Pa. 2013) (holding that a claim

not raised in the PCRA court was waived on appeal). Further, our Supreme

Court has explained that although “courts may liberally construe materials

filed by a pro se litigant, pro se status confers no special benefit upon a

litigant, and a court cannot be expected to become a litigant’s counsel or find

more in a written pro se submission than is fairly conveyed in the pleading.”

Commonwealth v. Blakeney, 108 A.3d 739, 766 (Pa. 2014).

Our review of the record confirms that, although Appellant challenged

aspects of his sentence and raised trial counsel’s ineffectiveness in his pro se

filings before the PCRA court, he did not specifically raise any claims relating

to the discretionary aspects of his sentence.9 However, even liberally
____________________________________________

9 Appellant raised claims in his pro se PCRA petition related to double jeopardy
and merger, which assert that the trial court erred in imposing consecutive
sentences for aggravated assault and carrying a firearm on a public street in
Philadelphia because these convictions arose out of the same act, and the
legislature did not intend to punish the same conduct twice, see Pro Se PCRA,
2/22/17, at 53 (renumbered). See Commonwealth v. Johnson, 231 A.3d
807, 819 (Pa. 2020) (stating that “[t]he Double Jeopardy Clause protects a
defendant in a criminal proceeding against multiple punishments . . . for the
(Footnote Continued Next Page)

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construing Appellant’s pro se pleadings, we cannot conclude that he preserved

a claim that trial counsel was ineffective for failing to file a post-sentence

motion challenging the discretionary aspects of Appellant’s sentence.

Therefore, because Appellant has raised this issue for the first time on appeal,

it is waived.10 See Pa.R.A.P. 302(a); Roney, 79 A.3d at 611.
____________________________________________

same offense” (citations and quotation marks omitted)); Commonwealth v.
Baldwin, 985 A.2d 830, 833 (Pa. 2009) (explaining that under 42 Pa.C.S. §
9765, offenses merge when they arise from a single criminal act and all of the
elements of one of the offenses are included in the elements of the other).
Merger is a challenge to the legality of the sentence and not to its discretionary
aspects. See generally Baldwin, 985 A.2d at 833 (stating that merger for
sentencing purposes involves the legality of a sentence, and the standard and
scope of review is de novo and plenary, respectively). The PCRA court did not
address this claim in its Rule 1925(a) opinion. Although Appellant asserts
merger claims in his pro se PCRA petition, he did not raise these issues on
appeal; instead he claims that his trial counsel was ineffective for not
challenging the discretionary aspects of his sentence. See Appellant’s Brief
at 17-29.

In any event, Appellant’s merger claims are misplaced. Section 9765
“prohibits merger unless two distinct facts are present: 1) the crimes arise
from a single criminal act; and 2) all of the statutory elements of one of the
offenses are included in the statutory elements of the other.” Baldwin, 985
A.2d at 833. Instantly, because these offenses do not have any elements in
common, the offenses do not merge for sentencing purposes, even if they
arose from a single criminal act. Compare 18 Pa.C.S. § 2702(a)(1) (defining
aggravated assault), with 18 Pa.C.S. § 6108 (defining carrying a firearm on
a public street in Philadelphia).

10 As noted above, in his pro se PCRA petition, Appellant claimed that the trial
court imposed an illegal sentence when it imposed fines and costs without
considering his ability to pay. See Pro Se PCRA, 2/22/17, at 62-63
(renumbered). The PCRA court did not address this claim in its Rule 1925(a)
opinion. Further, Appellant did not raise this claim on appeal; rather he argues
that his trial counsel was ineffective for not challenging the discretionary
aspects of his sentence. See Appellant’s Brief at 17-29. A claim that a trial
(Footnote Continued Next Page)

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Ineffective Assistance of Counsel - Cell Phone Evidence

In his second issue, Appellant argues that trial counsel was ineffective

for failing to introduce evidence that the cell phone with the phone number

(267) 290-0026 did not belong to Appellant. Appellant’s Brief at 29-32. By

way of background, Appellant notes that, at trial, the cell phone was used to

establish that Appellant was in the vicinity of the October 24, 2012 shooting.

Id. at 29. Appellant claims that phone records establish that the cell phone

was first activated on June 26, 2010, at which point Appellant was

incarcerated for another matter. Id. at 30. Appellant contends that this

evidence would have shown that he did not own the cell phone that the

Commonwealth used to place him at the scene of the October 24, 2012

shooting. Id. Appellant argues the benefits of introducing this evidence

outweighed the potential prejudice of introducing evidence that Appellant had

____________________________________________

court imposed a non-mandatory fine without considering the defendant’s
ability to pay that fine is a non-waivable challenge to the legality of the
sentence, not to its discretionary aspects. See generally Commonwealth
v. Ford, 217 A.3d 824, 827 (Pa. 2019). A challenge to the trial court’s
authority to impose costs also implicates the legality of the sentence. See
Commonwealth v. Lehman, 201 A.3d 1279, 1283 (Pa. Super. 2019), aff’d,
243 A.3d 7 (Pa. 2020).

In any event, our review of the record demonstrates that although the trial
court ordered Appellant to pay court costs, it did not impose any fines.
Therefore, the trial court did not impose an illegal sentence when it assessed
mandatory court costs without holding an ability-to-pay hearing. See, e.g.,
Ford, 217 A.3d at 827 n.6; Commonwealth v. Lopez, 248 A.3d 589, 595-
96 (Pa. Super. 2021) (en banc), appeal granted, 178 EAL 2021, 2021 WL
3732290 (Pa. filed Aug. 24, 2021) (per curiam order)

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been previously incarcerated. Id. at 31-32. Therefore, Appellant contends

that trial counsel had no reasonable basis for his inaction. Id. Appellant also

claims that he was prejudiced by counsel’s omission of this evidence in light

of several witnesses recanting their testimony that he was the shooter on

October 24, 2012.11 Id.

This Court has explained that

our standard of review from the denial of a PCRA petition is limited
to examining whether the PCRA court’s determination is supported
by the evidence of record and whether it is free of legal error. The
PCRA court’s credibility determinations, when supported by the
record, are binding on this Court; however, we apply a de novo
standard of review to the PCRA court’s legal conclusions.

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

(citations omitted and formatting altered).

Furthermore, to establish a claim of ineffective assistance of
counsel, a defendant must show, by a preponderance of the
evidence, ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or
innocence could have taken place. 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.

We have explained that a claim has arguable merit where the
factual averments, if accurate, could establish cause for relief.

____________________________________________

11 Appellant does not identify these witnesses by name. Instead, he cites to
portions of the notes of testimony where witnesses testified that the
statements they gave to the police were not true. Appellant’s Brief at 31
(citations omitted).

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Whether the facts rise to the level of arguable merit is a legal
determination.

The test for deciding whether counsel had a reasonable basis for
his action or inaction is whether no competent counsel would have
chosen that action or inaction, or, the alternative, not chosen,
offered a significantly greater potential chance of success.
Counsel’s decisions will be considered reasonable if they
effectuated his client’s interests. We do not employ a hindsight
analysis in comparing trial counsel’s actions with other efforts he
may have taken.

Prejudice is established if there is a reasonable probability that,
but for counsel’s errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.

Boilerplate allegations and bald assertions of no reasonable basis
and/or ensuing prejudice cannot satisfy a petitioner’s burden to
prove that counsel was ineffective. Moreover, a failure to satisfy
any prong of the ineffectiveness test requires rejection of the
claim of ineffectiveness.

Id. at 1043-44 (citations omitted and formatting altered).

Further, it is well settled that

[t]here is no absolute right to an evidentiary hearing on a PCRA
petition, and if the PCRA court can determine from the record that
no genuine issues of material fact exist, then a hearing is not
necessary. To 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.

Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa. Super. 2019) (citations

and quotation marks omitted), appeal denied, 218 A.3d 380 (Pa. 2019).

Lastly, this Court “may affirm the decision of the [PCRA] court if there is any

basis on the record to support the [PCRA] court’s action; this is so even if we

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rely on a different basis in our decision to affirm.” Commonwealth v. Wiley,

966 A.2d 1153, 1157 (Pa. Super. 2009) (citation omitted).

Here, the PCRA court did not specifically address this claim in its 1925(a)

opinion.12 However, our review of the record confirms that Appellant has

failed to establish that he was prejudiced by trial counsel’s decision not to

introduce evidence that Appellant was incarcerated at the time the subscriber

activated the cell phone with the number ending in 0026. As noted previously,

the evidence presented to the jury showed that police recovered the cell phone

from the residence where Appellant was arrested. Further, text messages

sent from that phone in October 2012 identified the sender as “Min,” which is

Appellant’s nickname. Appellant argues that his trial counsel should have

presented additional evidence to show that the cell phone did not belong to

him, i.e., that Appellant was incarcerated at the time the phone was activated

on June 26, 2010. However, the jurors, as the finders of fact, could conclude

circumstantially that Appellant possessed and used the phone in October

2012. Therefore, on this record, Appellant cannot satisfy the prejudice prong

of the ineffectiveness test, i.e., a reasonable probability that the outcome of

his trial would have been different if counsel had introduced the subject

evidence. See Sandusky, 203 A.3d at 1044. Accordingly, Appellant is not

entitled to relief on this claim. See id. (stating that the “failure to satisfy any
____________________________________________

12 The PCRA court discussed Appellant’s claim that the cell phone data
obtained from T-Mobile was not admissible and noted that this Court
addressed this claim in Appellant’s direct appeal. See PCRA Ct. Op., 5/19/20,
at 3, 5-6 (citing Gibbs, 2018 WL 1516366).

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prong of the ineffectiveness test requires rejection of th[at] claim”); see also

Wiley, 966 A.2d at 1157 (stating that we may affirm the denial of Appellant’s

PCRA petition on any grounds).

After-Discovered Evidence

In his final issue, Appellant argues that the PCRA court erred in denying

his claim of after-discovered evidence with respect to former Detective Nordo.

Appellant’s Brief at 32-35. Specifically, Appellant asserts that “Nordo was

fired in 2017 and criminally charged for his criminal conduct related to

witnesses, [] includ[ing] sexually assaulting male witnesses. Moreover, he

has been accused of using coercive and abusive tactics toward witnesses.”

Id. at 33. Appellant contends that the PCRA court erred in concluding that

Nordo was only tangentially involved in the investigation, given that Nordo

took part in the questioning of and taking a statement from J.C. Buford, who

testified that he was a witness to the November 17, 2012 shooting. Id. at

33-34. At trial, Buford testified that he did not voluntarily go the police station

to give a statement and did not sign the written statement. Id. at 35.

Appellant acknowledges that Buford was a witness to the November 17, 2012

shooting, and that Appellant was not convicted of any charges related to that

shooting. Id. at 34-35. Appellant argues that, even so, evidence of Nordo’s

misconduct is still relevant because Buford’s allegedly coerced statement “was

still part of the totality of the evidence that was heard and considered by the

jury and certainly was not favorable to the Appellant . . . .” Id. at 34.

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In reviewing an after-discovered evidence claim, this Court has

explained:

To establish eligibility on the basis of after-discovered evidence, a
petitioner must prove that (1) the evidence has been discovered
after trial and it 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 if a new trial were granted.
In determining whether the evidence would compel a different
verdict, a court should consider the integrity of the alleged after-
discovered evidence, the motive of those offering the evidence,
and the overall strength of the evidence supporting the conviction.

Sandusky, 203 A.3d at 1060 (citations and quotation marks omitted).

The after-discovered evidence test “is conjunctive; the defendant must

show by a preponderance of the evidence that each of these factors has been

met in order for a new trial to be warranted.” Commonwealth v. Padillas,

997 A.2d 356, 363 (Pa. Super. 2010) (citations omitted).

After-discovered evidence of an officer’s prior misconduct may compel

a new trial where that officer was the Commonwealth’s only witness at the

defendant’s trial. See, e.g., Commonwealth v. Williams, 215 A.3d 1019,

1026-28 (Pa. Super. 2019). However, this Court has held that the filing of

criminal charges against a detective who testified at the defendant’s

suppression hearing and at trial does not meet the after-discovered evidence

test where the defendant fails to show any nexus between his case and the

detective’s alleged misconduct in an incident that occurred after the

defendant’s trial. Commonwealth v. Foreman, 55 A.3d 532, 537-38 (Pa.

Super. 2012).

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Here the PCRA court addressed Appellant’s after-discovered evidence

claim as follows:

[Appellant’s] after-discovered evidence claim must fail as he is
unable to prove that Nordo’s misconduct is of such a nature that
this information, if presented to the fact-finder, would have led to
a different verdict. In support of this claim, [Appellant] argues
that the trial court should not have permitted Officer Golphin to
read into the record the interview of J.C. Buford because Nordo
typed it. However, [Appellant’s] claim is without merit because
Nordo was only tangentially involved in the case. Nordo did not
testify at trial nor was he a lead detective on the case. In fact, at
trial, Nordo’s name is only mentioned a handful of times: (1) when
Officer Golphin read an interview conducted with witness J.C.
Buford, Officer Golphin stated that he conducted the interview
while Nordo typed; (2) [Detective] Nordo was mentioned again
during Officer Krewer’s testimony, where Officer Krewer indicated
that he went to arrest [Appellant] at the girlfriend’s house and
that Nordo had provided him with the address; and (3) Detective
Thorsten Lucke mentioned that Nordo was present at [Appellant’s]
house when police executed the search warrant; however,
Detective Lucke testified that he searched and recovered all of the
firearms himself and made no mention of any further involvement
by Nordo. Based upon Nordo’s limited involvement in the
investigation and the fact that he did not even testify at trial,
[Appellant] is unable to show that his [after-]discovered evidence
regarding Nordo on the “do not call” list would have changed the
outcome of his trial in any way. Therefore, this [c]ourt properly
dismissed [Appellant’s] claim as meritless.

PCRA Ct. Op. at 6-7.

Based on our review of the record, we find no error in the PCRA court’s

conclusions. See Sandusky, 203 A.3d at 1060. As noted by the PCRA court,

it is unlikely that evidence relating to Nordo’s misconduct would compel a

different verdict if a new trial was granted, especially because Nordo did not

testify at Appellant’s trial. See PCRA Ct. Op. at 6; compare Williams, 215

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A.3d at 1026-28. Further, Appellant did not present any evidence linking

Nordo’s misconduct to the questioning of Buford; therefore, Appellant cannot

establish a nexus between Nordo’s misconduct and Appellant’s case. See

Foreman, 55 A.3d at 537-38. Finally, as Appellant acknowledges, Buford was

a witness to the shooting on November 17, 2012, and Appellant was acquitted

of all charges related to that shooting. Therefore, Appellant cannot establish

that evidence of Nordo’s alleged misconduct would compel a different verdict

at a new trial in the instant matter.13 Accordingly, Appellant is not entitled to

relief on this claim. See Sandusky, 203 A.3d at 1060; Padillas, 997 A.2d

at 363.

For these reasons, we affirm the PCRA court’s order denying Appellant’s

PCRA petition without a hearing. See Maddrey, 205 A.3d at 328.

Order affirmed.

____________________________________________

13 Appellant notes that Nordo was involved in Appellant’s arrest and the
subsequent search of his residence. Appellant’s Brief at 34-35. However,
Appellant has not argued that the evidence recovered during that search
would have been suppressed if evidence of Nordo’s misconduct had been
presented. See Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa.
Super. 2007) (en banc) (holding that “the failure to develop an adequate
argument in an appellate brief may result in waiver of the claim under
Pa.R.A.P. 2119” (citation and formatting altered)).

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/23/21

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