Com. v. Edwards, D. ( 2016 )


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  • J. S38012/16
    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
    :           PENNSYLVANIA
    v.                     :
    :
    DONTEY EDWARDS,                          :          No. 2755 EDA 2015
    :
    Appellant         :
    Appeal from the PCRA Order, August 28, 2015,
    in the Court of Common Pleas of Philadelphia County
    Criminal Division at No. CP-51-CR-0006809-2009
    BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS, JJ.
    MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED SEPTEMBER 09, 2016
    Dontey Edwards appeals from the order entered in the Court of
    Common Pleas of Philadelphia County that dismissed his petition filed
    pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546
    (“PCRA”).
    The trial court set forth the facts of this case:
    On December 31, 2008, in the early afternoon,
    Eldridge Wesley (“Wesley”) was outside with his
    cousin, Michael Walker (“Walker”), on the 1300 block
    of West Wishart Street. Malik Miles (“Miles”) yelled
    at Wesley from down the street and, in response,
    Wesley began to approach Miles. As the two men
    began to talk, Wesley told Walker to walk down the
    street away from where he and Miles were standing,
    and Walker complied. Miles and Wesley proceeded
    to get into a “heated argument” over who was
    allowed to be out on that particular block selling
    drugs.    While Miles and Wesley were arguing,
    Dontey Edwards (“Edwards”) was standing near
    J. S38012/16
    Miles, but did not say anything to Wesley. In an
    attempt to end the conflict, Wesley “flagged” Miles
    and began walking away. As he looked back over his
    shoulder, Wesley saw Miles pull a black handgun
    from his pocket; Edwards had a black and chrome
    gun in his hand. Both Miles and Edwards began to
    shoot at Wesley. As Wesley began to run, he was
    shot in the leg and fell to the ground. Wesley kept
    moving on the ground, trying to seek cover, and was
    shot numerous times throughout his legs and
    abdomen.      As Walker heard the shots, he saw
    Edwards begin to shoot at him and he ran away from
    the direction of the gunfire. Walker then ran toward
    Wesley when he saw him lying in the street and
    Wesley stated “Malik shot me” before losing
    consciousness.
    At approximately 1:00 p.m. Officers Sneed
    and Stallbaum were traveling northbound on
    13th Street while on their way to Temple Hospital.
    The officers were hailed by a male and a female who
    told them of a commotion just south of their location
    and as Officer Stallbaum was reversing the vehicle,
    they heard six (6) to eight (8) gunshots.        The
    officers drove in the direction of the gunshots and
    when they arrived at the 1300 block of West Wishart
    Street moments later they found approximately
    thirty people running and screaming. The officers
    found Wesley unconscious, lying face up on the
    ground, covered in blood, with multiple gunshot
    wounds. They placed Wesley in their vehicle and
    rushed him to the Temple Hospital emergency room.
    Walker got in his brother’s vehicle and began to
    drive to the hospital, but was stopped by
    Officers Ramos and Slobodian before he left the
    area. Officer Sneed stayed at the hospital until
    approximately 7:00 p.m., when a nurse provided
    him with a projectile that had been removed from
    Wesley’s body and gave him an update that Wesley
    was in critical but stable condition.
    Officers Waters and Frysiek responded to the
    radio call for a shooting on the 1300 block of
    West Wishart    Street.     They    received  flash
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    J. S38012/16
    information for a “black male, medium build, wearing
    [a] greenish-brown hoodie [and] tan pants” whose
    name was Malik. The officers surveyed the area until
    an anonymous tip drew their attention to
    3133 Camac Street. They radioed their location and
    then Officer Waters secured the front of the property
    while Officer Frysiek went to secure the rear.
    Officer Waters testified that the property appeared to
    be abandoned, as the outside was rundown, the
    front door could not be secured, the upstairs
    windows were broken, and the interior, as seen
    through a front window, was completely dilapidated.
    Officer Waters observed a male matching the flash
    description inside the property and as soon as
    backup officers arrived, less than one minute later,
    they knocked and entered through the unsecured
    door. As they entered, a couple of males were
    running up the stairs. Officer Waters observed Miles
    toss a small baggie to the floor as he was running up
    the steps and Officer Waters detained Miles just
    before he reached the second floor. The officer
    brought Miles back downstairs and recovered the
    baggie, which contained an off-white chunky
    substance, alleged[ly] crack cocaine.
    From the rear of the property, Officer Frysiek
    observed a black male, later identified as Edwards,
    perched from a second floor rear window.            The
    officer ordered him to stop, but Edwards jumped
    from the window.          Officer Frysiek radioed a
    description of Edwards as “black male, black hoodie,
    orange shirt, blue jeans, and I believe tan boots.”
    Officer Coulter was sitting in his vehicle in a
    perimeter position, when he observed the highway
    unit chasing a male, wearing a black hoodie, orange
    shirt, blue jeans and tan boots, on foot northbound
    up 12th Street. The officer proceeded northbound on
    12th Street in his vehicle, following the male until the
    male made a right hand turn into an alleyway.
    Officer Coulter exited his vehicle, pursued the male
    up the alleyway on foot, arrested the male, and then
    Officer Frysiek identified him as the male who had
    jumped from the window.
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    J. S38012/16
    Dr. Amy Goldberg is the Chief of Trauma and
    Surgical Critical Care at Temple University Hospital
    and she was qualified to testify as an expert in the
    field of medical trauma and critical care.
    Dr. Goldberg was one of many trauma surgeons who
    treated Wesley, upon his arrival at the hospital on
    December 31, 2008. Upon arrival, Wesley “had no
    blood pressure and was not breathing on his own
    and his heart rate was very, very slow.” Among
    other gunshot wounds, Wesley had been shot
    through the femoral artery in his right thigh and had
    lost a significant amount of blood. Dr. Goldberg
    testified that with such trauma he could have bled
    out “within minutes” and that if he had not received
    emergency treatment as soon as he did “he could
    have died.”     Wesley was also bleeding from his
    rectum as well as his anus and he had sustained
    severe injuries to his bladder, large bowel, and veins
    within his pelvis.     In addition to his abdominal
    injuries, Wesley suffered significant trauma to his leg
    bones, which required orthopedic surgeries to
    correct. Dr. Goldberg estimated that Wesley had
    undergone eighteen (18) separate surgeries in the
    course if [sic] his treatment at Temple University
    Hospital.
    Officer Louis Grandizio, a fifteen year veteran
    of the Philadelphia police force, was qualified to
    testify as an expert in the field of ballistics and
    firearms identification. He explained the internal
    mechanism of a firearm, as well as the various
    components of a piece of ammunition, and he
    testified that he was able to match the eleven (11)
    fired cartridge casings that Detective Etsell had
    recovered from the scene to three different firearms.
    Officer Grandizio testified that there were eight (8)
    9 millimeter Lugers fired from one firearm, two (2)
    9 millimeter Lugers fired from a second firearm, and
    one (1) .32 automatic fired from a third firearm.
    Trial court opinion, 4/28/11 at 3-7 (footnotes omitted).
    The PCRA court set forth the following procedural history:
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    J. S38012/16
    Prior to trial, Edwards and his co-defendant
    Malik Miles presented a motion for the court to grant
    a continuance, a motion to appoint a medical expert
    for the defense, and a motion for recusal, all of
    which this court denied. On February 16, 2010,
    Edwards elected to exercise his right to a jury trial
    and pled not guilty to all charges on bill of
    information CP-51-CR-0006809-2009. At the close
    of the Commonwealth’s case-in-chief, Edwards made
    a motion for judgment of acquittal based on the
    evidence, which this court denied. On February 23,
    2010, the jury found Edwards and co-defendant
    Malik Miles guilty of Attempted Murder (F1),
    Aggravated Assault (F1), Criminal Conspiracy for
    Engaging in Aggravated Assault (“Conspiracy”) (F1),
    Carrying Firearms Without a License (“VUFA
    § 6106”) (F3), Possession of an Instrument of Crime
    (M1), and Recklessly Endangering Another Person
    (M2).[1] At the conclusion of the trial, the case was
    continued to April 30, 2010 for sentencing.          On
    April 30, 2010, this court sentenced Edwards to
    8.5-20 years of incarceration in a state facility for
    Attempted Murder (F1) and 1.5-3 years of
    incarceration in a state facility for Carrying Firearms
    Without a License (F3), to run consecutively. He
    received no further penalty on the remaining
    charges.
    On May 20, 2010, Edwards filed a notice of
    appeal to the Superior Court of Pennsylvania and the
    Court affirmed his convictions and judgment of
    sentence on February 29, 2012. On December 21,
    2010, while his appeal was pending, Edwards filed a
    PCRA petition.    This court sent Edwards a 907
    Notice, pursuant to Pa.R.Crim.P. 907(1), on July 22,
    2011 and formally dismissed the petition on
    August 26, 2011.
    On October 29, 2012, Edwards filed the instant
    PCRA petition and on October 2, 2013, Edwards filed
    1
    18 Pa.C.S.A. § 901(a), 18 Pa.C.S.A. § 2702(a), 18 Pa.C.S.A. § 903(a)(1),
    18 Pa.C.S.A. § 6106(a)(1), 18 Pa.C.S.A. § 907(a), and 18 Pa.C.S.A. § 2705,
    respectively.
    -5-
    J. S38012/16
    a Partial Amendment to Post Conviction Relief
    Petition.   PCRA counsel was appointed and, on
    January 1, 2015, counsel filed an Amended PCRA
    Petition. On May 19, 2015, the Commonwealth filed
    a Motion to Dismiss and the matter was first listed
    before this Court for decision on July 31, 2015. On
    August 5, 2015, following a review of the record, this
    Court sent Edwards a 907 Notice, pursuant to
    Pa.R.Crim.P. 907(1). This court did not receive any
    response to the 907 Notice. On August 28, 2015[,]
    this court dismissed the PCRA petition.
    PCRA court opinion, 9/18/15 at 1-2.
    Appellant raises the following issues for this court’s review:
    I.    Whether the judge was in error in denying the
    Appellant’s    PCRA     petition    without   an
    evidentiary hearing on the issues raised in the
    amended      PCRA    petition    regarding  trial
    counsel’s ineffectiveness[?]
    II.   Whether the Judge was in error in not granting
    relief on the PCRA petition alleging counsel was
    ineffective[?]
    Appellant’s brief at 8.
    With respect to whether the PCRA court erred when it did not grant
    relief on the PCRA petition that alleged trial and appellate counsel were
    ineffective,2 the PCRA court has ably and thoroughly addressed these issues
    in its opinion of September 18, 2015. This court will affirm on the basis of
    that opinion.
    With respect to whether the PCRA court erred when it denied the
    petition without conducting an evidentiary hearing, this court affirms.
    2
    We have foregone the sequence of appellant’s arguments.
    -6-
    J. S38012/16
    In PCRA appeals, our scope of review “is limited to the findings of the
    PCRA court and the evidence on the record of the PCRA court’s hearing,
    viewed   in    the     light   most   favorable    to   the   prevailing   party.”
    Commonwealth v. Sam, 
    952 A.2d 565
    , 573 (Pa. 2008) (internal quotation
    omitted). Because most PCRA appeals involve questions of fact and law, we
    employ a mixed standard of review.         Commonwealth v. Pitts, 
    981 A.2d 875
    , 878 (Pa. 2009).       We defer to the PCRA court’s factual findings and
    credibility determinations supported by the record.           Commonwealth v.
    Henkel, 
    90 A.3d 16
    , 20 (Pa.Super. 2014) (en banc).                 In contrast, we
    review the PCRA court’s legal conclusions de novo. 
    Id.
    [T]he right to an evidentiary hearing on
    a post-conviction petition is not absolute.
    Commonwealth v. Jordan, 
    772 A.2d 1011
    , 1014 (Pa.Super. 2001). It is within
    the PCRA court’s discretion to decline to
    hold a hearing if the petitioner’s claim is
    patently frivolous and has no support
    either in the record or other evidence.
    
    Id.
         It is the responsibility of the
    reviewing court on appeal to examine
    each issue raised in the PCRA petition in
    light of the record certified before it in
    order to determine if the PCRA court
    erred in its determination that there
    were no genuine issues of material fact
    in controversy and in denying relief
    without    conducting     an    evidentiary
    hearing.          Commonwealth           v.
    Hardcastle, 
    701 A.2d 541
    , 542-543 (Pa.
    1997).
    Commonwealth v. Turetsky, 
    925 A.2d 876
    , 882
    (Pa.Super. 2007), appeal denied, 
    940 A.2d 365
    -7-
    J. S38012/16
    (Pa. 2007) quoting Commonwealth v. Kalifah, 
    852 A.2d 1238
    , 1239-1240 (Pa.Super. 2004).
    Commonwealth v. Wah, 
    42 A.3d 335
    , 338 (Pa.Super. 2012).
    Here, the PCRA court determined from the record before it that the
    issues raised by appellant lacked merit and that it had no need to conduct a
    hearing and did not err when it declined to conduct a hearing.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 9/9/2016
    -8-
    }:
    Circulated 08/25/2016 10:14 AM
    IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
    TRIAL DIVISION - CRIMINAL SECTION
    COMMONWEALTH OF PENNSYLVANIA
    v.                                            CP-51-CR-0006809-2009
    DONTEY EDWARDS
    OPINION
    This Opinion is written in support of this court's August 28, 2015 dismissal of
    Dontey Edwards' PCRA petition.
    PROCEDURAL HISTORY
    Prior to trial, Edwards and his co-defendant Malik Miles presented a motion for
    the court to grant a continuance, a motion to appoint a medical expert for the defense,
    and a motion for recusal, all of which this court denied.   On February 16, 2010, Edwards
    elected to exercise his right to a jury trial and pied not guilty to all charges on bill of
    information CP-51-CR-0006809-2009.         At the close of the_Commonwealth's case-in-
    chief, Edwards made a motion for judgment of acquittal based on the evidence, which
    this court denied.   On February 23, 2010, the jury found Edwards and co-defendant
    Malik Mile3 guilty of Attempted Murder (F1),         Aggravated Assault (F1),        Criminal
    Conspiracy for Engaging in Aggravated Assault ("Conspiracy") (F1), Carrying Firearms
    Without a License ("VUFA § 6106") (F3), Possession of an Instrument of Crime (M1),
    I
    I
    I
    I        and Recklessly Endangering Another Person (M2).          At the conclusion of the trial, the
    i
    case was continued to April 30, 2010 for sentencing.        On April 30, 2010, this court
    sentenced Edwards to 8.5-20 years of incarceration in a state facility for Attempted
    Murder (F1) and 1.5-3 years of incarceration in a state facility for Carrying Firearms
    Without a License (F3), to run consecutively.      He received no further penalty on the
    remaining charges.
    On May 20, 2010, Edwards filed a notice of appeal to the Superior Court of
    Pennsylvania and the Court affirmed his convictions and judgment of sentence on
    February 29, 2012. On December 21, 2010, while his appeal was pending, Edwards
    filed a PCRA petition.    This court sent Edwards a 907 Notice, pursuant to Pa.R.Crim.P.
    907(1), on July 22, 2011 and formally dismissed the petition on August 26, 2011.
    On October 29, 2012, Edwards filed the instant PCRA petition and on October 2,
    2013, Edwards filed a Partial Amendment to Post Conviction Relief Petition.           PCRA
    counsel was appointed and, on January 1, 2015, counsel filed an Amended PCRA
    Petition. On May 19, 2015, the Commonwealth filed a Motion to Dismiss and the matter
    was first listed before this Court for decision on July 31, 2015.      On August 5, 2015,
    following a review of the record, this Court sent Edwards a 907 Notice, pursuant to
    Pa.R.Crim.P.   907(1 ).   This court did not receive any response to the 907 Notice.    On
    August 28, 2015 this court dismissed the PCRA petition.
    DISCUSSION
    The standard applied when reviewing an order dismissing a PCRA petition is
    whether the determination of the PCRA court is supported by the record evidence and is
    free of legal error.1 The PCRA court's factual determinations are entitled to deference,
    but its legal determinations are subject to plenary review. 2 The PCRA court's findings
    will not be disturbed unless there is no support for the findings in the certified record.'
    Pursuant to 42 Pa.C.S.         9545(b),     a PCRA petition,   including second and
    subsequent petitions, must be filed within one year of the date the judgment becomes
    final, unless the petition alleges and the petitioner proves that his claim(s) fall under any
    of the three enumerated exceptions to the one year requirement. These exceptions are
    interference by government officials4, facts unknown and not discoverable by due
    diligence5, and newly recognized constitutional rights that apply retroactively".             A
    petition claiming one of these exceptions must be filed within sixty (60) days of the time
    the claim could have been presented.7 Further, the Pennsylvania Supreme Court set
    forth in Commonwealthv. Fahl that "a claim of ineffective assistance of counsel does
    not save an otherwise untimely petition for review on the merits."
    In the instant matter, Edwards' PCRA petition was timely filed and, in conjunction
    with the Amended Petition, asserted claims of ineffective assistance of counsel. Upon
    review of the record, the petition, the Amended Petition, and the Commonwealth's
    Motion to Dismiss, this Court has determined that Edwards' claims are without merit.
    Under the Post-Conviction Relief Act, claims of ineffective assistance of counsel
    are evaluated pursuant to the three-prong test set forth by the Pennsylvania Supreme
    1
    Com. v. Hart, 
    911 A.2d 939
    , 941 (Pa. Super. 2006).
    2
    Com. v. Hawkins, 
    894 A.2d 716
    , 722 (Pa. 2006).
    3
    Com. v. Hart, 
    911 A.2d 939
    , 941 (Pa. Super. 2006).
    4
    42 Pa.C.S. 9545(b)(1 )(i).
    5
    42 Pa.C.S. 9545(b)(1)(ii).
    6
    42 Pa.C.S. 9545(b)(1 )(iii).
    7
    42 Pa.C.S. 9545(b)(2).
    8
    
    714 A.2d 214
     (Pa. 1999).
    9
    I      Id. at 223.
    i
    I
    1·
    Court in Commonwealth v. Pierce", using the same standard as when such claims are
    raised on direct appeal."      Pierce established that ineffectiveness claims are measured
    by both counsel's performance and the prejudice suffered by the petitioner.12                The law
    presumes counsel to have been effective; thus, the petitioner bears the burden of
    establishing the following three prongs: first, that the ineffectiveness claim has arguable
    merit; second, that counsel's act or omission did not have a reasonable basis; and third,
    that the petitioner suffered prejudice on account of counsel's act or omission.13              If it is
    apparent that the prejudice prong has not been met, the first two prongs of the test need
    not be determined.14
    In assessing the Pierce prongs related to counsel's performance, counsel's error
    or omission "must have so undermined the truth determining process that no reliable
    adjudication of guilt or innocence could have taken place.?"               Counsel inherently has
    broad discretion to determine the strategy employed, thus a review of counsel's act or
    omission must determine whether counsel's decisions were reasonably designed to
    benefit the client.16 A finding that a chosen strategy lacked a reasonable basis is not
    warranted unless it can be concluded that an alternative not chosen offered a potential
    for success substantially greater than the course actually pursued.17
    In assessing the prejudice prong of Pierce, the petitioner must prove that he
    suffered prejudice on account of counsel's decisions. "Prejudice" can be described as
    10
    
    527 A.2d 973
     (Pa. 1987).
    11
    Com. v. Kimball, 
    724 A.2d 326
     (Pa. 1999).
    12
    Com. v. Pierce, 
    527 A.2d 973
    , 975 (Pa. 1987).
    13
    Id.; see also Com. v. Breakiron, 
    729 A.2d 1088
    , 1101 (Pa. 1999).
    14
    Com. v. Jones, 
    683 A.2d 1181
    , 1188 (Pa. 1996).
    15
    Com. v. Hawkins, 
    894 A.2d 716
    , 722 (Pa. 2006) (citing Com. v. Allen, 
    732 A.2d 582
    , 587 n.15 (Pa.
    1999).
    16
    Com. v. Fowler, 
    670 A.2d 153
    , 155 (Pa. Super 1996); Com. v. Polston, 
    616 A.2d 669
    , 677 (Pa. Super
    1992).
    17
    Com. v. Howard, 
    719 A.2d 233
    , 237 (Pa. 1998).
    whether,      but for the arguably   ineffective   act or omission,   there   is a reasonable
    probability   that the outcome would have been different.18     In other words, the petitioner
    must establish that counsel's actions prejudiced him to such an extent that a reliable
    determination of guilt was not made at trial."
    A. Ineffectiveness claims againsttrial counsel
    i. Claim of counsel's ineffectiveness for failing to file a motion that the verdict was
    against the weight of the evidence
    Edwards' assertion that counsel was ineffective for failing to present a post-trial
    motion challenging          the weight of the evidence is meritless, as the weight of the
    evidence presented at trial more than supported the jury's verdict. Counsel cannot be
    deemed ineffective for failing to file a frivolous motion and any challenge to the weight of
    the evidence would have lacked merit. This Court's April 28, 2011 Opinion in Edwards'
    direct appeal summarized the evidence presented as follows:
    On December 31, 2008, in the early afternoon, Eldridge Wesley
    ("Wesley") was outside with his cousin, Michael Walker ("Walker"), on the
    1300 block of West Wishart Street. Malik Miles ("Miles") yelled at Wesley
    from down the street and, in response, Wesley began to approach Miles.
    As the two men began to talk, Wesley told Walker to walk down the street,
    away from where he and Miles were standing, and Walker complied.
    Miles and Wesley proceeded to get into a "heated argument" over who
    was allowed to be out on that particular block-selling drugs.20 While Miles
    and Wesley were arguing, Dontey Edwards ("Edwards") was standing
    near Miles, but did not say anything to Wesley. In an attempt to end the
    conflict, Wesley "flagged" Miles and began walking away. 21 As he looked
    back over his shoulder, Wesley saw Miles pull a black handgun from his
    pocket; Edwards had a black and chrome gun in his hand. Both Miles and
    Edwards began to shoot at Wesley. As Wesley began to run, he was shot
    in the leg and fell to the ground. Wesley kept moving on the ground, trying
    18
    Com. v. Kimball. 
    724 A.2d 326
    , 330 (Pa. 1999).
    19
    Ccm. v. Lassen. 
    659 A.2d 999
    , 1011 (Pa. Super 1995).
    20
    N.T. 2/16/2010 at 146:1-4.
    21
    N.T. 2/16/2010 at 146:4-5, 152:6-9.
    .        I
    to seek cover, and was shot numerous times throughout his legs and
    abdomen. As Walker heard the shots, he saw Edwards begin to shoot at
    him and he ran away from the direction of the gunfire. Walker then ran
    toward Wesley when he saw him lying in the street and Wesley stated
    "Malik shot me" before losing consciousness.
    At approximately 1:00 p.m., Officers Sneed and Stallbaum were
    traveling northbound on 13th Street while on their way to Temple Hospital.
    The officers were hailed by a male and a female who told them of a
    commotion just south of their location and as Officer Stallbaum was
    reversing the vehicle, they heard six (6) to eight (8) gunshots. The officers
    drove in the direction of the gunshots and when they arrived at the 1300
    block of West Wishart Street moments later they found approximately
    thirty people running and screaming.           The officers found Wesley
    unconscious, lying face up on the ground, covered in blood, with multiple
    gunshot wounds. They placed Wesley in their vehicle and rushed him to
    the Temple Hospital emergency room. Walker got in his brother's vehicle
    and began to drive to the hospital, but was stopped by Officers Ramos
    and Slobodian before he left the area. Officer Sneed stayed at the
    hospital until approximately 7:00 p.m., when a nurse provided him with a
    projectile that had been removed from Wesley's body and gave him an
    update that Wesley was in critical but stable condition.
    Officers Waters and Frysiek responded to the radio call for a
    shooting on the 1300 block of West Wishart Street. They received flash
    information for a "black male, medium build, wearing [a] greenish-brown
    hoodie [and] tan pants" whose name was Malik.22 The officers surveyed
    the area until an anonymous tip drew their attention to 3133 Camac
    Street. They radioed their location and then Officer Waters secured the
    front of the property while Officer Frysiek went to secure the rear. Officer
    Waters testified that the property appeared to be abandoned, as the
    outside was rundown, the front door could not be secured, the upstairs
    windows were broken, and the interior, as seen through a front window,
    was completely dilapidated. Officer Waters observed a male matching the
    flash description inside the property and as soon as backup officers
    arrived, less than one minute later, they knocked and entered through the
    unsecured door. As they entered, a couple of. males were running up the
    stairs. Officer Waters observed Miles toss a small baggie to the floor as
    he was running up the steps and Officer Waters detained Miles just before
    he reached the second floor. The officer brought Miles back downstairs
    and recovered the baggie, which contained an off-white chunky
    substance, alleged crack cocaine.
    From the rear of the property, Officer Frysiek observed a black
    male, later identified as Edwards, perched from a second floor rear
    window. The officer ordered him to stop, but Edwards jumped from the
    window. Officer Frysie!< radioed a description of Edwards as "black male,
    I       22
    N.T. 2/18/2010 at 12:6-11.
    ·I
    . !
    l
    black hoodie, orange shirt, blue jeans, and I believe tan boots."23 Officer
    Coulter was sitting in his vehicle in a perimeter position, when he
    observed the highway unit chasing a male, wearing a black hoodie,
    orange shirt, blue jeans and tan boots, on foot northbound up 1 ih Street.
    The officer proceeded northbound on 1 ih Street in his vehicle, following
    the male until the male made a right hand turn into an alleyway. Officer
    Coulter exited his vehicle, pursued the male up the alleyway on foot,
    arrested the male, and then Officer Frysiek identified him as the male who
    had jumped from the window.
    Dr. Amy Goldberg is the Chief of Trauma and Surgical Critical Care
    at Temple University Hospital and she was qualified to testify as an expert
    in the field of medical trauma and critical care. Dr. Goldberg was one of
    many trauma surgeons who treated Wesley, upon his arrival at the
    hospital on December 31, 2008. Upon arrival, Wesley "had no blood
    pressure and was not breathing on his own and his heart rate was very,
    very slow."24      Among other gunshot wounds, Wesley had been shot
    through the femoral artery in his right thigh and had lost a significant
    amount of blood. Dr. Goldberg testified that with such trauma he could
    have bled out "within minutes" and that if he had not received emergency
    treatment as soon as he did "he could have died."25 Wesley was also
    bleeding from his rectum as well as his anus and he had sustained severe
    injuries to his bladder, large bowel, and veins within his pelvis. In addition
    to his abdominal injuries, Wesley suffered significant trauma to his leg
    bones, which required orthopedic surgeries to correct. Dr. Goldberg
    estimated that Wesley had undergone eighteen (18) separate surgeries in
    the course if his treatment at Temple University Hospital.
    Officer Louis Grandizio, a fifteen year veteran of the Philadelphia
    police force, was qualified to testify as an expert in the field of ballistics
    and firearms identification.     He explained the internal mechanism of a
    firearm, as well as the various components of a piece of ammunition. and
    he testified that he was able to match the eleven (11) fired cartridge
    casings that Detective Etsell had recovered from the scene to three
    different firearms. Officer Grandizio testified that there were eight (8) 9
    millimeter Luge rs fired from one firearm, two (2) 9 millimeter Luge rs fired
    from a second firearm, and one (1) .32 automatic fired from a third firearm.
    Accordingly, the weight of the evidence more than supported Edwards' convictions for
    Attempted Murder (F1), Aggr:wated Assault (F1), Conspiracy (F1). VUFA § 6106 (F3),
    Possession of an Instrument of Crime (M1), and Recklessly Endangering Another
    Person (M2) and . any challenge by counsel would have lacked merit.                   As such,
    23
    N.T. 2/18/2010 at 93:25; 94:26.
    2~
    N.T. 2/17/2010 at 19:14-16.
    25
    N.T. 2/17/2010 at 20:10-17.
    . I
    .,  I
    11
    Edwards' instant claim of ineffectiveness    does not satisfy the requisite prongs of Pierce
    and must be dismissed.
    ii. Claim of counsel's   ineffectiveness   for failing   to file a motion     to reconsider
    sentence
    Edwards' assertion that counsel was ineffective for failing to present a post-trial
    motion for reconsideration       of sentence also must fail because Edwards has not made
    the requisite       showing   of actual prejudice.     This    Court sentenced         Edwards   to an
    aggregate sentence of 10-23 years of incarceration            in a state facility, which represents
    a lower end guideline sentence and, as such, this Court would not have reconsidered its
    sentence.       On the charge of Attempted Murder, the guidelines with the deadly weapon
    enhancement         were 8.5 years to the statutory limit and on the charge of VUFA § 6106
    the guidelines       were 18-30 +/- 12 months. Accordingly,          this Court imposed a lower end
    guideline      sentence on both charges and imposed no further penalty on the remaining
    charges. This sentence reflected this Court's assessments                of the evidence presented
    during the trial, as stated by this Court at the sentencing hearing:
    I have taken a very close look at the presentence report, the guidelines, as
    well as the circumstances of the crime itself, I sat through the trial. I am
    going to apply the deadly weapon enhancement. I am going from those
    guidelines. However, I am not, in this case with·this defendant, going to do
    the statutory max, because I believe that the guidelines are appropriate.
    The standard guidelines are appropriate for this defendant with the deadly
    weapon enhancement used as being the guidelines.
    I believe that his age, the nature of the crime, the fact that there were two
    I                      shooters the way I heard it that there is absolutely no question that there
    I                          were two shooters and the jury found that to be the case. But at all times
    the victim, right from the beginning ider.tified Malik, anc I do think that Mr.
    Miles is considered in a much different light that perhaps the guidelines
    I                          might not be appropriate for Miles, but for Mr. Edwards I believe they are
    26
    appropriate.
    26
    N.T. 4/30/2010 at 9-10.
    As such,     Edwards    cannot    show that he suffered       actual   prejudice       on account of
    counsel's   failure to file a motion for reconsideration   of sentence      and,    consequently,   his
    claim in the instant petition does not warrant relief.
    iii. Claim of counsel's ineffectiveness for failing to object to Edwards being tried
    on the charge of Possession of an Instrument of Crime
    Edwards'    assertion   that counsel   was ineffective for failing    to object to Edwards
    being tried on the charge of Possession of an Instrument         of Crime is meritless and finds
    no support in the record.      While Edwards avers that the Possession             of an Instrument of
    Crime charge was withdrawn at the preliminary hearing, the record belies this averment.
    The transcript from the preliminary    hearing provides the following:
    THE COURT: What about the possession charge?
    DISTRICT ATTORNEY: I am not worried about it, Your Honor. I'll
    withdraw it.
    THE COURT: All right then. Malik Miles and Dontey Edwards, this Court
    finds that a prima fascie case has been made out against you on all
    charges except for possession. You're held for court to be at the Criminal
    Justice Center-
    However, the docket sheet of co-defendant Malik Miles illustrates that, in addition to the
    charges presented to the jury in the instant case with Edwards, Miles had also been
    · charged with Knowing and Intentional Possession of a Controlled Substance and it was
    this "possession charge" against Miles that was withdrawn at the preliminary hearing.
    As such, Edwards claim lacks merit and must be dismissed.
    . I
    ·'
    .!
    iv. Claim of counsel's   ineffectiveness for failing                     to     object   to    the
    Commonwealth amending the attempted murder charge
    Edwards' assertion that counsel was ineffective for failing to object to the
    Commonwealth's amendment of the Attempted Murder charge is also meritless and
    similarly finds no support in the record.27          Prior to trial, the district attorney sought an
    amendment to the bills of co-defendant Malik Miles to include the charge of Attempted
    Murder that had been erroneously             omitted following the preliminary hearing.               This
    amendment was entirely proper; however, it is not relevant to the instant petition
    because it was solely related to the case of co-defendant Miles.               Accordingly, Edwards'
    claim warrants no relief.
    B. Ineffectiveness claims against appellate counsel
    i. Claim of counsel's ineffectiveness for causing two issues to be deemed waived
    by the Superior Court on direct appeal
    In his petition,   Edwards asserts that counsel caused two issues to be deemed
    waived on direct appeal.         The first issue was the Commonwealth's                alleged failure to
    notify Edwards of its intent to pursue a theory of accomplice liability and the second
    issue was this Court's alleged addition of the accomplice charge in its instructions to the
    jury.   While counsel's failure to properly raise these issues in the 1925(b) statement
    resulted in the issues being waived, the issues themselves lack merit and would not
    have been meritorious on appeal and, as such, Edwards' claim does not warrant relief.
    Edwards' claim related to the notification of the theory of accomplice liability is
    wholly unsupported by the record.           While Edwards was not specifically charged with
    27
    This Court notes that although this issue was addressed on direct appeal, further review of the record
    shows that counsel's objection at trial was not made on behalf of both defendants, as the Commonwealth
    did not need to amend Edwards' bills of information.
    ,1
    being an accomplice, this Court was not precluded from giving the jury an instruction on
    ;I        accomplice liability. The Supreme Court of Pennsylvania has held that a defendant may
    be convicted as an accomplice even though he was only charged as a principal."                     The
    Court explained that "[a]s long as the defendant is put on notice that the Commonwealth
    may pursue theories of liability that link the defendant and another in commission of
    crimes, the defendant cannot claim that the Commonwealth's pursuit of such a theory
    surprised and prejudiced the defendant."29 In the instant case, Edwards and his co-
    defendant were charged with Conspiracy in the case and thus, Edwards had more than
    adequate notice that the Commonwealth might pursue a theory of liability linking him
    with another in the commission of the crimes. While accomplice liability is not the same
    as conspiratorial liability, the requirements for establishing guilt via accomplice liability
    30
    coincide with the requirements                of establishing guilt   via   conspiratorial    liability.
    Accordingly, Edwards' claim, even if not waived, would not have been meritorious on
    direct appeal.
    Edwards' claim related to this Court's alleged addition of the accomplice charge
    in its instructions to the jury also finds no support in the record. This Court previously
    addressed this claim in its April 28, 2011 Opinion on direct appeal, stating:
    Edwards claims that this court introduced a new charge to the jury
    while addressing the jury's question about the court's instruction on
    conspiracy. This claim has no merit. On February 22, 2010, the jury
    submitted the following question:
    Is the criminal conspiracy charge related to a certain criminal
    act, (i.e., attempted murder) or just in general? Can we see
    the charge or definition for criminal conspiracy?"
    28
    Com. v. Spotz, 
    716 A.2d 580
     (Pa. 1988).
    29   
    Id.
    30
    Compare 18 Pa.C.S. §306(c) (defining accomplice liability) and 18 Pa.C.S. § 903 (defining crime of
    conspiracy).
    3t
    N. T. 2/22/2010 at 81 :23-25; 82: 1-2 .
    .!
    . I
    ,
    In accordance with the bill of information on which Edwards was
    arraigned, this court established for counsel that it would re-read the
    charges against Edwards as well as re-read the instruction on liability for
    the conduct of another person or persons. This court formulated the exact
    response to be given to the jury, and in the process of doing so, this court
    stated "attempted murder in the first degree" numerous times.            No
    objection to this phrase was made by any party until after this court had
    given the following response to the jury:
    The defendants in this case, Malik Miles and Dontey
    Edwards, are on trial before you charged with attempted
    murder in the first degree, aggravated assault, criminal
    conspiracy to commit assault, carrying a firearm without a
    license, possession of instrument of crime with the intent to
    employ it criminally, and recklessly endangering another
    person. Now, there are two basic ways a defendant may be
    criminally responsible for the conduct committed by another
    person or persons. [ ... ]32
    Regardless of the objection, Edwards suffered no prejudice on account of
    the phrase "attempted murder in the first degree." The Advisory
    Committee Note for Pennsylvania Suggested Standard Criminal Jury
    Instruction 12.901A.1 states:
    The courts have decided that the only degree of murder that
    may be subject to an attempt charge is murder in the first
    degree. A defendant must specifically intend that death
    result for an attempted homicide to be complete. The death
    in lesser grades of murder may occur as an unintended
    result of otherwise criminal conduct; it is, thus, logically
    impossible for one to be able to attempt to commit second-
    or third-degree murder.33
    Therefore, this court's reference to "first degree" was not an additional
    charge against Edwards nor did it cause him prejudice at trial.
    Accordingly, Edwards' claim, even if not waived, would not have been meritorious on
    ··· direct appeal. ·
    :s2 N.T. 2/22/2010 at 86:1-11.
    33
    Pa. SSJI (Crim) 12.901A.1  (citing Com. v. Geathers, 
    847 A.2d 730
     (Pa.Super.   2004); Com. v. Clinger,
    .I     
    833 A.2d 792
    , 796 (Pa.Super. 2003); Com. v. Williams, 
    730 A.2d 507
     (Pa.Super.       1999); Com. v. Griffin,
    
    456 A.2d 171
     (Pa.Super. 1983)).
    . I
    ,
    ii. Claim of counsel's ineffectiveness for failing to challenge this Court's denial of
    ·I            the request for a mistrial on direct appeal
    I             Edwards' final assertion is that his counsel was ineffective for failing to raise the
    I     issue of this Court denying his request for a mistrial based upon the prosecutor's
    remarks during closing arguments that he "had a gun and shot the victim" and that "the
    shooting was over drugs. "34 While Edwards has failed to properly present this claim
    with direct references to the transcript, as the closing arguments were not transcribed,
    this Court will address the claim based upon the alleged remarks contained in the
    Amended Petition.        In Commonwealth v. Judy,35 the Pennsylvania Superior Court
    opined that
    [i]t is well settled that a prosecutor has considerable latitude during closing
    arguments and his arguments are fair if they are supported by the
    evidence or use inferences that can reasonably be derived from the
    evidence. Further, prosecutorial misconduct does not take place unless
    the unavoidable effect of the comments at issue was to prejudice the
    jurors by forming in their minds a fixed bias and hostility toward the
    defendant, thus impeding their ability to weigh the evidence objectively
    and render a true verdict. "36
    The Court further stated that "comments made by a prosecutor must be examined
    within the context of defense counsel's conduct. It is well settled that the prosecutor may
    fairly respond to points made in the defense closing."37
    In the instant case, the evidence presented at trial through the testimony of
    Eldridge Wesley and Michael Walker established that:
    [o]n December 31, 2008, in the early afternoon, Eldridge Wesley
    ("Wesley") was outside with his cousin, Michael Walker ("Walker''), on the
    1300 block of West Wishart Street. Malik Miles ("Miles") yelled at Wesley
    34
    January 1, 2015 Amended Petition, page 16.
    35
    
    978 A.2d 1015
     (Pa. Super. 2009).
    35
    td. at 1020 (citing Com. v. Holley, 
    945 A.2d 241
    , 250 (Pa. Super 2008)).
    37
    Com. v. Judy, 
    978 A.2d 1015
    , 1020 (Pa. Super. 2009) (citing Com. v. Chmiel, 
    889 A.2d 501
    , 544 (Pa.
    I
    2005}}.
    )j
    !I
    1
    . I
    I               from down the street and, in response, Wesley began to approach Miles.
    As the two men began to talk, Wesley told Walker to walk down the street,
    away from where he and Miles were standing, and Walker complied.
    ·I                   Miles and Wesley proceeded to get into a "heated argument" over who
    was allowed to be out on that particular block selling drugs. 38 While Miles
    and Wesley were arguing, Oontey Edwards ("Edwards") was standing
    near Miles, but did not say anything to Wesley. In an attempt to end the
    conflict, Wesley "flagged" Miles and began walking away.39 As he looked
    back over his shoulder, Wesley saw Miles pull a black handgun from his
    pocket; Edwards had a black and chrome gun in his hand. Both Miles and
    Edwards began to shoot at Wesley. As Wesley began to run, he was shot
    in the leg and fell to the ground. Wesley kept moving on the ground, trying
    to seek cover, and was shot numerous times throughout his legs and
    abdomen. As Walker heard the shots, he saw Edwards begin to shoot at
    him and he ran away from the direction of the gunfire. Walker then ran
    toward Wesley when he saw him lying in the street and Wesley stated
    "Malik shot me" before losing consciousness."
    This evidence more than supports the prosecutor's alleged remarks that Edwards "had
    a gun and shot the victim" and that "the shooting was over drugs." As such, this Court's
    denial of counsel's request for a mistrial was entirely proper and would not have been a
    meritorious claim on direct appeal; consequently, Edwards' claim of ineffectiveness
    must fail.
    CONCLUSION
    Based upon this Court's independent review of the record, the petition, the
    Amended Petition, and the Commonwealth's Motion to Dismiss, this Court concludes
    that Edwards' claims of ineffective assistance of counsel lack
    38
    N.T. 2/16/2010 at 146:1·4.
    39
    N.T. 2/16/2010 at 146:4·5; 152:6-9.
    40
    See April 28, 2011 Opinion.
    I
    I
    .I