Com. v. Alsbrook, M.

J-S37008-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARVIN ALSBROOK :
:
Appellant : No. 2405 EDA 2022

Appeal from the PCRA Order Entered August 28, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002093-2014

BEFORE: BENDER, P.J.E., MURRAY, J., and SULLIVAN, J.

MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 27, 2024

Appellant, Marvin Alsbrook, appeals nunc pro tunc from the August 28,

2020 order denying his petition under the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546. Appellant argues that the PCRA court erred in

dismissing the petition without a hearing. We affirm.

This Court previously set forth the factual history, as taken from the trial

court opinion issued on direct appeal:

On July 17, 2013, around 10:00 p.m., [the victim, Ronald Brown,]
received a call to deliver food to 1139 Union Street. When he
arrived at the row house address, he called the caller ID number
of the person who ordered the pizza, and the person responded
that he would come downstairs. While the victim was waiting on
the porch of the property, he saw [Appellant], with his distinct
style of walk, and codefendant Tyreek Torrence walking together
down the street towards him from the corner. [Appellant] asked,
“What’s up, homie?” while holding a black .38 revolver gun in his
left hand. The victim said, “Damn,” and put his keys down, the
pizza down, and his hands up by his head “for fear of [his] life.”
Codefendant stood there [and] then came up on the steps,
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grabbed the victim by the collar of his shirt, and the victim “went
willingly to the ground” and lay on his stomach. [Appellant] went
up on the porch, got the keys, and went straight to the driver’s
side of the victim’s van. Codefendant went through the victim’s
pockets and sock and took $380.00 United States Currency, his
wallet, and his phone. The victim pleaded, “Please don’t hurt me.
I have two children.” Codefendant replied, “Nobody’s going to
hurt you.” Codefendant then got up, got into the passenger side
of the van, and [Appellant] drove off toward the Philadelphia Zoo.
The victim went around the corner to a friend’s house and called
the police.

Commonwealth v. Alsbrook, No. 2298 EDA 2015, unpublished

memorandum at *1-2 (Pa. Super. July 6, 2016) (bracketing in original).

Appellant sought review with our Supreme Court, which denied his petition on

December 7, 2016.

Appellant filed a timely, pro se PCRA petition on August 24, 2017.

Lawrence J. Bozzelli, Esq., was appointed to represent Appellant and filed an

amended petition. Meanwhile, Appellant had filed a motion to proceed pro se.

Motion to Withdraw Counsel, 7/9/18, at 1 (unpaginated). On April 2, 2019,

the PCRA court issued a notice of its intent to dismiss the counseled petition

pursuant to Pa.R.Crim.P. 907, and Appellant filed a timely response objecting

to the notice, citing his outstanding request to proceed pro se.

The PCRA court held a Grazier1 hearing on May 20, 2019, issued an

order permitting Appellant to proceed pro se, and directed Appellant to file a

supplemental petition. Appellant complied, and the Commonwealth filed an

answer, with Appellant’s lodging a response. The PCRA court issued a Rule
____________________________________________

1 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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907 notice on July 1, 2020, to which Appellant did not file a response. The

PCRA court dismissed the petition on August 28, 2020. Appellant did not file

an appeal, but his appellate rights were reinstated nunc pro tunc pursuant to

a subsequent PCRA petition. Appellant, who is now represented by counsel,

challenges the denial of his pro se PCRA petition. He raises eight points of

error:

1. Whether the [c]ourt erred when it dismissed the petition
without a hearing insofar as numerous disputed issues of fact were
at issue in the same?

2. Whether the [c]ourt erred in dismissing the claim that the
evidence was insufficient to prove that [Appellant] was the
perpetrator of the crimes beyond a reasonable doubt and the
conviction therefore was in violation of Due Process?

3. Whether the [c]ourt erred in dismissing the claim that trial
counsel was ineffective for failing to consult with, and present the
testimony of, an expert witness on eyewitness identification
evidence?

4. Whether the [c]ourt erred in dismissing the claim that trial
counsel was ineffective for failing to investigate and offer evidence
of [Appellant]’s medical condition and his treatment by a nurse for
a gunshot which would have made his involvement in the crime
unlikely?

5. Whether the [c]ourt erred in dismissing the claim that trial
counsel was ineffective for failing to show that the number used
to order the pizza was not registered to [Appellant]?

6. Whether the [c]ourt erred in dismissing the claim that trial
counsel was ineffective in failing to object to witnesses identifying
themselves as members of the Narcotics Enforcement Team
[(NET)] and in failing to request a cautionary instruction insofar
as NET members testified to knowing [Appellant], thereby
implying that he was involved in drug activity in the past?

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7. Whether the [c]ourt erred in dismissing the claim that counsel
was ineffective in failing to object to testimony from Detectives
Jara and Antoni which violated the Confrontation Clause.

8. Whether the [c]ourt erred in rejecting [Appellant]’s challenge
to appellate counsel’s effectiveness insofar as he failed to
challenge the admission of hearsay testimony regarding
[Appellant’s] location when he was arrested which violated the
Confrontation Clause?

Appellant’s Brief at 8-9.2

Our standard of review is well-established:

When reviewing the propriety of an order denying PCRA relief, this
Court is limited to a determination of whether the evidence of
record supports the PCRA court’s conclusions and whether its
ruling is free of legal error. Commonwealth v. Robinson, 139
A.3d 178, 185 (Pa. 2016). This Court will not disturb the PCRA
court’s findings unless there is no support for them in the certified
record. Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa.
Super. 2014).

Commonwealth v. Hudson, 156 A.3d 1194, 1196–97 (Pa. Super. 2017).

The bulk of Appellant’s claims sound in ineffective assistance of counsel. The

law “presumes counsel has rendered effective assistance.” Commonwealth

v. Mullen, 267 A.3d 507, 512 (Pa. Super. 2021). The PCRA petitioner bears

the burden of establishing counsel’s ineffectiveness. Pennsylvania law

requires the petitioner to prove three prongs: “(1) the underlying claim is of

____________________________________________

2 Appellant’s list of issues presented does not correspond to the argument
section of his brief. For example, Appellant begins his brief with the heading
“I,” designated as “The [PCRA] court erred in dismissing [Appellant]’s
challenge to trial counsel’s effectiveness.” Appellant’s Brief at 19. He then
lists sub issue “A,” which argues the expert witness claim designated as issue
three in the questions presented. Meanwhile, issue number two, regarding
the sufficiency of the evidence to convict, is argued under the separate
heading “III,” and is the last issue briefed. For ease of discussion, we have
addressed the issues as presented in the statement of questions presented.

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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). “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Strickland v. Washington, 466 U.S.

668, 694 (1984). A court need not address the prongs in order, as the failure

to establish any prong precludes relief. Commonwealth. v. Basemore, 744

A.2d 717, 739 n.23 (Pa. 2000) (“Ordinarily, a claim of ineffectiveness may be

denied by a showing that the petitioner’s evidence fails to meet a single one

of these prongs.”).

Appellant’s first issue generically challenges the PCRA court’s decision

to dismiss the petition without holding an evidentiary hearing. A PCRA court

may issue a notice of its intent to dismiss a petition without a hearing if the

judge, after reviewing the petition, the Commonwealth’s answer, and the

record, determines that “there are no genuine issues concerning any material

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

and no purpose would be served by any further proceedings….” Pa.R.Crim.P.

907(1). We discuss those points where relevant to our analysis.

Appellant’s second issue asserts that the evidence was insufficient to

convict him of the crimes beyond a reasonable doubt. We agree with the

Commonwealth that this claim has been waived. The PCRA’s eligibility

provision requires that “the allegation of error has not been previously

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litigated or waived,” 42 Pa.C.S. § 9543(3), and “an issue is waived if the

petitioner could have raised it but failed to do so before trial, at trial, during

unitary review, on appeal or in a prior state postconviction proceeding.” 42

Pa.C.S. § 9544. A challenge to the sufficiency of the evidence can be raised

on direct appeal and the issue is therefore waived. See Commonwealth v.

Rounsley, 717 A.2d 537, 539 (Pa. Super. 1998) (deeming sufficiency of

evidence claim waived for failing to raise issue on direct appeal).

The Commonwealth cited waiver in its answer to Appellant’s petition,

and additionally noted that direct appeal counsel preserved a sufficiency of

the evidence argument in his concise statement but chose not to develop the

issue on appeal. Appellant’s response countered that the Commonwealth

ignored Section 9543(a)(4) of the PCRA, which states that “the failure to

litigate the issue prior to or during trial, during unitary review or on direct

appeal could not have been the result of any rational, strategic or tactical

decision by counsel.” 42 Pa.C.S. § 9543(a)(4). Appellant maintained that

“the Commonwealth does not claim that appellate counsel’s decision was

rational, strategic, or tactical.” Reply to Commonwealth’s Answer, 12/26/19,

at 3.

Appellant’s response ignores the statutory language preceding

subsection (4), which states: “To be eligible for relief under this subchapter,

the petitioner must plead and prove by a preponderance of the evidence all of

the following….” 42 Pa.C.S. § 9543(a). Counsel is presumed effective, and

Appellant must establish that the decision was not rational. By ignoring his

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burden, Appellant did not properly plead his claim for relief. On this basis

alone, the PCRA court did not err in dismissing his petition without a hearing.

Additionally, to the extent that the PCRA court should have charitably

interpreted Appellant’s statement to mean that he intended to call his direct

appeal attorney at an evidentiary hearing to discuss his reasons for

abandoning the claim, we note that Appellant does not request a remand for

that purpose, electing instead to litigate the underlying merits of the

sufficiency of the evidence claim. See Appellant’s Brief at 46-52. However,

he does not establish that prejudice resulted from his counsel’s abandonment

of the sufficiency claim. Specifically, Appellant asserts that “appellate

counsel’s failure [to raise the sufficiency issue] was the functional equivalent

of a denial of appellate review. Under these circumstances, prejudice is

presumed….” Id. at 44. We disagree. When appellate counsel’s acts cause

an actual denial of appellate review (such as by failing to file a requested

notice of appeal) or its functional equivalent (such as by failing to file an

appellate brief), the presumption of prejudice results in a specific remedy:

reinstatement of the right to file a direct appeal. See Commonwealth v.

Ciotto, 555 A.2d 930, 931 (Pa. Super. 1989) (“When a defendant establishes

that counsel’s ineffective assistance denied him entirely his right to a direct

appeal, he is entitled to a direct appeal nunc pro tunc without regard to his

ability to establish the merit of the issues which he seeks to raise on direct

appeal.”). If Appellant maintains that he was presumptively prejudiced, the

proper recourse was to request reinstatement of his direct appeal rights.

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Additionally, counsel’s asserted failures did not deny Appellant appellate

review. Counsel’s decision to focus on the sentencing issue may have

reflected a professional judgment that the sufficiency of the evidence claim

was so weak that its inclusion detracted from a potentially meritorious

sentencing claim. As our Supreme Court has noted, “[c]laims involving

appellate counsel ineffectiveness … involve concerns unique to appellate

practice. Arguably meritorious claims may be omitted in favor of pursuing

claims which, in the exercise of appellate counsel’s objectively reasonable

professional judgment, offer a greater prospect of securing relief.”

Commonwealth v. Lambert, 797 A.2d 232, 244 (Pa. 2001). The following

discussion explains why prejudice is not presumed when counsel chooses to

litigate some issues to the exclusion of others:

We expressly distinguish herein cases like the present where
direct appeal counsel’s ineffectiveness waived all the issues that
the post-conviction petitioner wished to raise from those cases
where direct appeal counsel simply did not raise every issue
requested by the criminal defendant. Clearly, in both situations,
the criminal defendant has a right to effective representation.
However, in the later situation, counsel’s conduct may, in fact,
have been effective, despite not raising every issue which the
defendant believes is meritorious.

Thus, a PCRA petitioner is entitled to an appeal nunc pro tunc
where prior counsel’s actions, in effect, entirely denied his right to
a direct appeal, as opposed to a PCRA petitioner whose prior
counsel’s ineffectiveness may have waived one or more, but not
all, issues on direct appeal. In the latter situation, the PCRA
petitioner’s right to a direct appeal was not entirely denied by
counsel’s ineffectiveness, and, therefore, he must establish that
counsel’s ineffectiveness so undermined the truth-determining
process so as to render unreliable the adjudication of guilt or
innocence. 42 Pa.C.S.[] § 9543(a)(2)(ii).

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Commonwealth v. Hernandez, 755 A.2d 1, 9 n.4 (Pa. Super. 2000), aff’d

in part, 817 A.2d 479 (Pa. 2003) (citations omitted). Counsel’s decision did

not completely deny Appellant appellate review and therefore Appellant’s

claim of presumptive prejudice is mistaken.

Alternatively, Appellant could not establish prejudice even if he had

presented a proper ineffectiveness claim. Counsel would be ineffective if the

sufficiency claim were so strong that relief was likely; the prejudice inquiry

under these circumstances asks whether the abandoned claim was so much

stronger that no rational attorney would decline to pursue it. Obviously, a

winning sufficiency claim would result in complete discharge and counsel

would have no valid strategic reason for abandoning it in favor of a claim

focusing on sentencing. In other words, this is not a case where counsel chose

to pursue a suppression issue in lieu of another evidentiary error that would

also result in a new trial. We thus examine the merits of Appellant’s sufficiency

claim as if presented on direct appeal to determine if counsel was ineffective.

Cf. Commonwealth v. Halley, 870 A.2d 795, 800 (Pa. 2005) (claim of

appellate counsel ineffectiveness; “Under the circumstances, although [the

a]ppellant’s position before the common pleas court was wanting in terms of

the development which has later occurred on appellate review, we find that it

was within the Superior Court’s prerogative to treat the issue as preserved.”).

Appellant does not challenge any specific elements of the crimes, only

Ronald Brown’s identification of Appellant. Appellant’s Brief at 47 (“As

explained below, the evidence in the case was insufficient to allow the jury to

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conclude that [Appellant] was the perpetrator of the robberies at issue.”).

Appellant describes Brown’s testimony as “unreliable and inconsistent” on this

topic, because it “was too dark and Brown’s opportunity to observe his

assailants was too inhibited” for an accurate identification. Id. at 48.

Additionally, while Brown claimed that he recognized Appellant from the

neighborhood and positively identified him as one of the men who robbed him,

Appellant argues that his testimony is weakened because “he never mentioned

[this] to the 911 operator or to the first responders.” Id. Appellant’s brief

also discusses concepts germane to expert testimony concerning eyewitness

identification, such as the concept that a witness’s ability to make an accurate

identification decreases when a weapon is present, and also where the

subject’s attention is divided between multiple people, as was the case here

since two men accosted the victim. Appellant also asserts that even if he “did

observe [Appellant] in the past, there is a reasonable probability that this is a

case of ‘unconscious transference,’” a phenomenon whereby someone selects

a person from a lineup based on past familiarity. Id. at 49.

We are not persuaded by these arguments. Appellant fails to grapple

with the fact that issues concerning the adequacy of a witness’ identification

go to weight, not sufficiency. In Commonwealth v. Boone, 429 A.2d 689

(Pa. Super. 1981), a group of men robbed three victims. Only one of the

three victims positively identified Boone as the culprit and, on cross-

examination, the victim “conceded that his identification was somewhat

‘fuzzy’” and further stated that Boone ‘looked like’ one of the men who robbed

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him. Id. at 691. We concluded that the evidence concerning identification

was sufficient, as “any uncertainty in [the victim’s] identification of [Boone]

was a matter for the jury in passing on weight and credibility, and did not

render the evidence insufficient to convict.” Id. Similarly, any issues

concerning the reliability of the victim’s identification in this case are not

sufficiency issues.

Appellant’s third and fourth issues involve the failure to call a witness.

The third issue relates to counsel’s failure to present an expert witness on the

subject of eyewitness identifications, while the fourth challenges counsel’s

failure to call a nurse who treated Appellant, which was relevant to his ability

to hold a firearm.

Beginning with the expert witness claim, Appellant argues that trial

counsel should have presented an expert on the subject of eyewitness

identification. In Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014), our

Supreme Court overruled law holding that such evidence was per se barred.

Appellant reasons that because this case rested on the victim’s identification,

there was a need to present expert testimony and counsel was ineffective for

not pursuing that strategy.

We conclude that the PCRA court did not err in dismissing this claim.

Our Supreme Court has explained the arguable merit prong as applied to this

claim requires proof “that an expert witness was willing and available to testify

on the subject of the testimony at trial, counsel knew or should have known

about the witness and the defendant was prejudiced by the absence of the

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testimony.” Commonwealth v. Williams, 141 A.3d 440, 460 (Pa. 2016).

Appellant failed to specify an expert witness who would have been willing to

testify and explain how that testimony would be helpful. While this holding is

sufficient to resolve this issue, we add that Appellant’s argument assumes it

is self-evident that the failure to call an expert prejudiced him following

Walker. We disagree. Appellant appears to interpret Walker as announcing

a per se rule that expert testimony on this topic is always admissible, but the

Court held that the trial court must exercise its discretion:

The absolute prohibition of such expert testimony simply proves
too extreme an approach in determining whether relevant
testimony should be admitted in this area. A more flexible
framework strikes a crucial balance in determining the admission
of expert testimony, as well as between protecting a defendant’s
rights while enabling the Commonwealth to meet its responsibility
of protection of the public. … We now allow for the possibility that
such expert testimony on the limited issue of eyewitness
identification as raised in this appeal may be admissible, at the
discretion of the trial court, and assuming the expert is qualified,
the proffered testimony relevant, and will assist the trier of fact.
Of course, the question of the admission of expert testimony turns
not only on the state of the science proffered and its relevance in
a particular case, but on whether the testimony will assist the jury.
Trial courts will exercise their traditional role in using their
discretion to weigh the admissibility of such expert testimony on
a case-by-case basis. It will be up to the trial court to determine
when such expert testimony is appropriate. If the trial court finds
that the testimony satisfies Frye [v. United States, 293 F. 1013
(D.C. Cir. 1923),] the inquiry does not end. The admission must
be properly tailored to whether the testimony will focus on
particular characteristics of the identification at issue and explain
how those characteristics call into question the reliability of the
identification. We find the defendant must make an on-the-record
detailed proffer to the court, including an explanation of precisely
how the expert’s testimony is relevant to the eyewitness
identifications under consideration and how it will assist the jury
in its evaluation. The proof should establish the presence of

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factors (e.g., stress or differences in race, as between the
eyewitness and the defendant) which may be shown to impair the
accuracy of eyewitness identification in aspects which are (or to a
degree which is) beyond the common understanding of
laypersons.

Walker, supra at 791–92.

While these observations address whether a trial court should permit an

expert to testify, the Court’s analysis illustrates the importance of calling a

witness at a PCRA hearing. If a defendant at trial must clear these hurdles,

the PCRA petitioner must do so as well, and in fact bears the additional burden

of showing how the absence of the testimony prejudiced him. That necessarily

entails an examination of the testimony as presented at a hearing. In

Commonwealth v. Robinson, 278 A.3d 336 (Pa. Super. 2022), wherein this

Court granted a new trial due to counsel’s failure to call an expert witness

under Walker, we concluded that the petitioner had established arguable

merit by locating a witness who “described a scientific model for how humans

create memory … [and] surveyed the five factors listed in Walker, explaining

how they might have affected Officer Fitzgibbon’s identification of Robinson.”

Id. at 343. The expert went “[b]eyond the five Walker factors[,] … also

describ[ing] other variables that can affect identification.” Id. at 344. We

then concluded that Robinson was prejudiced by the failure to present that

testimony.

Appellant declined to proffer similar testimony, even when alerted to the

defect by the Commonwealth’s answer. He therefore failed to establish that

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this claim has arguable merit, and the PCRA court did not err in dismissing

this claim without a hearing.

Turning to the other witness, Appellant alleges that trial counsel was

ineffective for failing to call a nurse to testify to Appellant’s injuries. By way

of background, Appellant testified at trial that he had been treated for a

gunshot wound to the neck close to his spine on May 8, 2013. Appellant then

introduced the medical records from his hospital stay for that wound, which

included discharge instructions. Appellant testified that he “couldn’t move

[his] left side” of his arm and that he “had a quality care nurse” who came to

his house to assist him with cleaning the wound. N.T., 4/10/15, at 104. This

evidence was relevant because Brown testified that Appellant was holding the

firearm in his left hand.

Appellant faults trial counsel for failing to call the nurse to corroborate

his testimony that he could not have held a gun in his left hand. In fact, he

did not name the witness. As with the expert witness claim, Appellant’s failure

to identify the witness is fatal to his claim. Commonwealth v. Selenski,

228 A.3d 8, 17 (Pa. Super. 2020) (concluding that PCRA court properly denied

failure to call witness claim where the witness “did not testify at [the

a]ppellant’s PCRA evidentiary hearing, [the a]ppellant did not offer an affidavit

from Mr. Weakley indicating he would have been willing to testify for the

defense, and [the a]ppellant has pointed to no other evidence establishing

that Mr. Weakley would have been willing to testify for the defense”). Again,

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the PCRA court did not err in denying this claim without holding an evidentiary

hearing.3

Appellant’s next issue alleges that trial counsel ineffectively failed to

identify the owner of the phone number used to call the pizza delivery. Recall

that the testimony from the victim established that, when he arrived to deliver

the food, he called the phone number supplied. The recipient said he would

come downstairs. Shortly thereafter, Appellant and his co-defendant

approached the victim. Appellant maintains that counsel ineffectively failed

to determine who owned the phone number in question.

This claim of PCRA court error is meritless. Appellant cannot establish

prejudice, as we agree with the Commonwealth that “[Appellant] was not

linked to the crime through the telephone number….” Commonwealth’s Brief

at 28 (emphasis omitted). Even if we assume that Appellant could definitively

establish that he did not own the phone number, the jury could still have

concluded that Appellant’s co-defendant or some other unnamed participant

called the phone. Alternatively, the jury could conclude that Appellant and his

co-defendant decided to rob Brown on a purely opportunistic basis, i.e., the

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3 Even if Appellant proffered a witness who could have testified at a PCRA
hearing, it is doubtful that Appellant could establish prejudice. As the PCRA
court noted, the medical records introduced at trial indicated that Appellant
could return to normal activities on May 8, 2013. PCRA Court Opinion,
11/9/22, at 14. The robbery occurred July 17, 2013. Appellant does not state
how long he received care from the nurse and, if he stopped treatment as of
May 8, 2013, the nurse’s testimony would not be particularly relevant as to
events occurring two months later.

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pizza delivery was legitimate. We point out that “[i]t is not enough for the

defendant to show that the errors had some conceivable effect on the outcome

of the proceeding. Virtually every act or omission of counsel would meet that

test, and not every error that conceivably could have influenced the outcome

undermines the reliability of the result of the proceeding.” Strickland, supra

at 693 (citation omitted).

Appellant’s next claim involves the fact that the Commonwealth called

several police officers who, generically speaking, testified that they knew

Appellant from their police duties and attempted to locate Appellant after

Brown positively identified him. Several of these officers stated, when asked

by the Commonwealth how they are employed, that they were members of

their department’s narcotics unit. Appellant argues that there was no reason

for the Commonwealth to have the officers indicate their specific job duties.

He further submits that the jury was left with the impression that Appellant

must have been involved in the drug trade.

Counsel cannot be deemed ineffective for failing to object because he

did, in fact, object to those references. As briefly acknowledged in Appellant’s

brief, counsel asked the court to exclude those references. During a

discussion before the jury was brought in, the Commonwealth stated, “Your

Honor, I don’t know if there was a ruling[;] counsel in the back indicated that

he did not want the officers to identify themselves as [narcotics] [o]fficers….”

N.T., 4/10/15, at 10. The trial judge stated “their jobs are their jobs” and

overruled the objection. Id. at 11. Appellant did not seek review of that issue

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on direct appeal and does not explain how trial counsel can be deemed

ineffective when he sought to exclude this evidence.

Appellant’s next two claims both involve evidence elicited by the

Commonwealth in connection with efforts to apprehend Appellant, and we

address them together. Detective Gregory Jara testified that his job duties

included attempting to serve arrest warrants. He explained that he and his

fellow officers make notes in an “apprehend log” when attempting to serve

warrants. The Commonwealth then asked Detective Jara, over Appellant’s

hearsay objection, to read entries from the log. Detective Jara informed the

jury that on September 18, 2013, the log showed that a police officer spoke

to Appellant’s girlfriend, who in turn provided a cell phone number. He further

testified that the log indicated that on October 8, 2013, someone asked the

FBI to investigate the phone number, and the FBI reported that the number

was “down.” Id. at 49. Additionally, on October 10, 2013, unspecified

members of Appellant’s family reported that they had not recently seen

Appellant. Turning to Detective Antonini’s testimony, he testified that when

Appellant was arrested he had been found hiding under a bed. On cross-

examination, Detective Antonini stated that he learned that information from

other police reports and officers.

Beginning with Detective Jara’s testimony, Appellant argues that trial

counsel, instead of objecting on hearsay grounds, should have specifically

objected that the testimony violated the Confrontation Clause to the United

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States Constitution.4 We conclude that Appellant was not prejudiced. The

Commonwealth properly introduced evidence establishing that Appellant

stopped appearing in the neighborhood once an arrest warrant was issued,

and that Appellant failed to appear in court on an unrelated matter, which

resulted in a separate bench warrant. Thus, Detective Jara’s statements were

cumulative of evidence already properly admitted. The same analysis applies

to Detective Antonini, and the case for no prejudice is even stronger since the

witness freely admitted that he had no personal basis for his statement.

Appellant’s final issue also involves testimony that Appellant was found

hiding under a bed when apprehended. Sergeant Kimber Zerweck testified

that he and four other police officers were on assignment when they received

information that Appellant was at a particular house. The five officers

proceeded to that location, and he saw a male run into the property. Sergeant

Zerweck knocked on the door and a woman answered. She denied that

anyone had entered the house and allowed the officers to enter. Sergeant

Zerweck testified that, while he was dealing with another male who was on

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4 The trial court overruled Appellant’s hearsay objection on the basis that the

log qualified as a business record. Appellant did not pursue that claim on
appeal. The Commonwealth concedes that the log may not have qualified as
a business record since that exception does not apply if the records are
generated for use in court. With respect to Appellant’s constitutional
argument, the Confrontation Clause does not permit the Commonwealth to
introduce “statements that were made under circumstances which would lead
an objective witness reasonably to believe that the statement would be
available for use at a later trial[.]” Crawford v. Washington, 541 U.S. 36,
52 (2004). We will assume for purposes of our disposition that there is
arguable merit to the Confrontation Clause claim.

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site, Officer McCoy5 went to another room. He stated, “Officer McCoy … had

encountered [Appellant] in the room under the bed and he pulled him out.”

N.T., 4/13/15, at 18. The Commonwealth then asked, “And did you see Officer

McCloud [sic] pulling [Appellant] from the bed?” He replied, “I didn’t see him

pulling him out, but he was there at the bed when I saw him.” Id. Appellant

moved to strike the testimony, and the trial court overruled the objection,

stating, “Well, for what it’s worth, he didn’t see it, so overruled.” Id.

Appellant alleges that appellate counsel was ineffective for failing to

pursue this issue on appeal, once again contending that “appellate counsel’s

failure in this regard was the functional equivalent of a denial of appellate

review.” Appellant’s Brief at 44. For this claim, Appellant recognizes that the

applicable remedy would be reinstatement of appellate rights, as he does not

argue that this preserved allegation of error would have resulted in a new trial

on appeal. As set forth supra, Appellant was not denied appellate review. He

has therefore failed to plead and prove his entitlement to PCRA relief.

Alternatively, we conclude that Appellant could not establish that he was

prejudiced by appellate counsel’s failure to pursue the claim on direct review.

Appellant would need to establish the merits of this claim for appellate counsel

to be ineffective, and he has failed to show how the witness’ comment could

possibly warrant a new trial. See Commonwealth v. Ragan, 645 A.2d 811,

827 (Pa. 1994) (noting that the test for “remarks made during the

____________________________________________

5 The officer’s first name was not given.

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examination of witnesses” is “whether the unavoidable effect of the contested

comments was to prejudice the jury, forming in their minds fixed bias and

hostility towards the accused so as to hinder an objective weighing of the

evidence and impede the rendering of a true verdict”) (citation omitted). Even

if the jury considered the hearsay for the truth of the matter asserted, whether

Appellant was in fact under the bed is, in our view, an incredibly minor point

since Sergeant Zerweck testified that he saw Appellant in the bedroom. The

probative value of the evidence rests in the fact that Appellant absented

himself from court proceedings, was not seen in the neighborhood following

the robbery, and hid from officers who knocked on the door seeking Appellant.

Whatever prejudice resulted to Appellant from the additional, untested

information that Appellant was under the bed is so minor that we cannot

conclude there is a reasonable probability that the outcome would have been

different if Sergeant Zerweck had refrained from making that comment.

Accordingly, Appellant would not have been entitled to PCRA relief even if this

claim had been properly pled.

Order affirmed.

Date: 2/27/2024

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