Com. v. Alston, R. ( 2019 )

J-S75009-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RONALD ALSTON :
:
Appellant : No. 363 EDA 2018
Appeal from the PCRA Order January 10, 2018
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0203312-2005
CP-51-CR-0204542-2005
CP-51-CR-0204551-2005
BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, J.: FILED JUNE 21, 2019
Ronald Alston appeals from the order dismissing his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. Appellant challenges the denial of an evidentiary hearing, and asserts
various claims of ineffectiveness of trial counsel. We affirm on the basis of
the PCRA court opinion.
This case has a long and somewhat convoluted history. In its opinion,
the PCRA court sets forth the relevant facts and procedural history for this
appeal. See PCRA Court Opinion, 4/16/18.1 Therefore, we need not restate
them at length here.
____________________________________________
1Although filed on April 16, 2018, the PCRA opinion is dated March 30, 2018,
and is sometimes referred to as such in the briefs and the record.
J-S75009-18
Briefly summarized for purposes of this appeal and the convenience of
the reader, we note that after a bench trial, the court found Appellant guilty
of attempted murder and numerous related offenses. Appellant’s conviction
arose out of an incident on October 14, 2004, at approximately 7:45 p.m.
Appellant and at least six co-conspirators opened fire on Charles Wesley,
Wesley’s paramour, Sharee Norton, and their two children. It was the second
attempt on Wesley’s life that day.
The assailants fired at least fifty-seven gunshots from eight semi-
automatic pistols before fleeing. Two Philadelphia police detectives and two
police officers were already in the immediate area investigating the previous
shooting. At least two civilians also witnessed the gunmen open fire. One of
the police officers involved was Detective Ronald Dove, who testified at the
trial.
The police returned fire and, when the shooters fled, pursued them on
foot. Backup officers in a marked police car intercepted the gunmen and the
police arrested them. The arrestees, including Appellant, were placed in
holding cells at Central Detectives. While the arrestees were in holding, a
police detective overheard Appellant and several of his co-conspirators talking
and laughing about the shooting incident. The detective testified at trial about
the inculpatory statements.
Norton also testified at Appellant’s trial. She claimed that when Wesley
heard the assailants say, “There’s Charles,” he said, “Oh shit, that’s them, get
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out of here.” PCRA Court Opinion, at 21; see also Appellant’s Brief, at 23,
25. Norton was a reluctant witness who admitted she was scared to testify.
See Appellant’s Brief, at 23. Wesley did not cooperate with the police, and
did not testify. See id. at 23-24.
Before trial, Appellant got into a fee dispute with his original trial
counsel, Todd Henry, Esq. The court permitted Attorney Henry to withdraw.
Thomas Strange, Esq., was appointed as substitute trial counsel. Attorney
Strange was in the same firm as Mr. Henry.
On November 18, 2005, after a bench trial, the court convicted Appellant
of one count of attempted murder, eight counts of aggravated assault, and
one count each of carrying firearms without a license, and criminal
conspiracy.2 On September 18, 2006, the court sentenced Appellant to an
aggregate term of not less than twenty nor more than forty years of
incarceration in a state correctional institution. The court denied a motion for
reconsideration of sentence. On direct appeal, this Court affirmed the
judgment of sentence on July 23, 2008. See Commonwealth v. Alston,
959 A.2d 956 (Pa. Super. 2008) (unpublished memorandum). Appellant filed
a timely first PCRA petition. Our Supreme Court remanded for a hearing on
whether then-counsel had abandoned Appellant. See Commonwealth v.
Alston, 969 A.2d 1181 (Pa. 2009).
____________________________________________
2 Appellant’s six co-defendants were convicted of similar offenses.
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J-S75009-18
After a hearing, various appeals and petitions not at issue here, on
August 29, 2016, appointed counsel filed the instant amended PCRA petition.
In this petition, Appellant alleged, among other complaints, that he had “newly
discovered evidence” regarding one of the police detectives involved in this
case, Detective Dove. Appellant cited a newspaper account reporting that
years after the events at issue here, Dove helped his paramour, who had
murdered her ex-husband, flee from Pennsylvania. Appellant also asserted it
was improper for Dove to have testified as a witness in the same trial where
he had been one of the arresting officers.
On January 10, 2018, after proper notice, the PCRA court dismissed the
petition without a hearing. This appeal followed. Both Appellant and the PCRA
court complied with Pa.R.A.P. 1925.
Appellant presents seven issues−framed as two questions and six
subsidiary questions:
I. Whether the [c]ourt erred in not granted an evidentiary hearing
on the claims set forth in the Amended PCRA petition alleging
[c]ounsel was ineffective[?]
II. Whether the [c]ourt erred in not granting relief on the PCRA
petition alleging prior [c]ounsel was ineffective for the following
claims:
a. Counsel Henry was ineffective for failing to notify
Appellant of his intent to withdraw and Counsel Strange had
a conflict of interest[?]
b. Trial [c]ounsel was ineffective for failing to object
to hearsay evidence[?]
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c. Trial [c]ounsel was ineffective for failing to
investigate whether or not Charles Wesley had implicated
the Appellant[?]
d. Trial [c]ounsel was ineffective for failing to object
to Detective Dove’s conflicting interest during trial[?]
e. Newly discovered evidence regarding Detective
Dove’s firing and charges against him necessitate a new
trial[?]
f. Counsel was ineffective for failing to file post-trial
motions that the verdict was against the weight of the
evidence[?]
Appellant’s Brief, at 8.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the PCRA court, we conclude
that there is no merit to the issues Appellant has raised on appeal.
The PCRA court opinion properly disposes of the questions presented.
See PCRA Court Opinion, 4/16/18, at 12-39 (concluding: (1) Appellant failed
to present genuine issues of material fact, and PCRA court properly acted
within its discretion by declining to grant evidentiary hearing; (2) Appellant
failed to prove that Attorney Henry failed to give timely notice of withdrawal;
PCRA court properly granted petition to withdraw after fee dispute; and
Appellant failed to prove that substitute counsel, Attorney Strange, had
conflict of interest because he was from same firm as Attorney Henry; (3) trial
counsel was not ineffective for failure to object to purported hearsay where
Norton’s testimony was incidental, innocuous and did not prejudice Appellant;
(4) trial counsel was not ineffective for failing to investigate whether or not
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Wesley had implicated Appellant or to call Charles Wesley as a witness where
Appellant failed to prove: (a) Wesley was willing to testify; (b) was available;
(c) counsel knew or should have known of witness; (d) Wesley was prepared
to cooperate, and (e) lack of Wesley’s testimony prejudiced Appellant; (5) trial
counsel was not ineffective for choosing not to object to Detective Dove’s
testimony where evidence of his “dual role” as “victim” in shooting and
investigator of crime did not constitute conflict of interest, and Appellant
offered no authority to support his boilerplate claim or unusual theory to
contrary; Dove’s termination and criminal charges against him five years later
for helping his girlfriend flee from murder charge did not constitute previously
unavailable newly discovered facts for this case; Appellant failed to plead and
prove that evidence against Dove would not be used solely for impeachment,
or that evidence, if produced, at trial, would have altered outcome of case;
and (6) Appellant failed to develop or support his claim challenging weight of
the evidence, and evidence against him, including eyewitness bystander
testimony, police testimony, ballistics evidence, and Appellant’s holding cell
admissions, was overwhelming).
We agree with the PCRA court’s legal reasoning and adopt it as our own.
Accordingly, we affirm on the basis of the PCRA court’s opinion.
Order affirmed.
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J-S75009-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/21/2019
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A.2d 956 (Pa.Super. 2008) (unpublished memorandum). No timely allocatur petition was filed,
but on September 24, 2008, the defendant filed prose a Petition for Leave to File a Petition for
Allowance of Appeal Nunc Pro Tune in our Supreme Court, followed by what was docketed as
an Application for Relief on March 6, 2009. Commonwealth v. Alston, 152 EM 2008, 600 Pa.
636, 969 A. 2d 1181 (2009). On April 14, 2009, the Court remanded the case to this court" ... to
hold a hearing and determine ... whether counsel ... abandoned representation of Petitioner
[and if] the trial court determines that counsel abandoned Petitioner, counsel is directed to file a
Petition for Allowance of Appeal on Petitioner's behalf ... "2 Before the PCRA court could act,
· however, the Supreme Court entered an order on May gth stating "Reconsideration Time
Expired/Case Closed" and the court assumed that rendered the question moot. However, the
defendant filed a PCRA petition pro se on August l 81h claiming ineffective assistance by his
appellate counsel in failing to file a petition for allocatur. New counsel was appointed who filed
an amended petition on November 16, 2010, reasserting that claim and adding the claim that trial
I
In his Pa.R.A.P. 1925(b) Concise Statement of Errors Complained of on Appeal he included a claim that the
evidence was insufficient to sustain the verdicts but apparently did not pursue that issue in his brief. The trial court
did address the merits of both that and the weight claim in its Pa.R.A.P. /925(a) opinion which is discussed infra
because it is applicable to one of the underlying claims here.
2
The trial court docket lists the order as "Order Granting Petition for Leave to Appeal Nunc Pro Tune", but that is
incorrect. The order specifically states that the defendant may file the latepetition only if the PCRA court first
determines that he was abandoned by counsel, and thus, if the court finds he was not, he could not do so.
2
counsel rendered ineffective assistance for failing· to present a challenge to the weight of the
evidence.3 The Commonwealth filed a motion to dismiss on December 7, 2011, the court issued
a notice of intent to dismiss pursuant to Pa.R.Crim.P. 907 on May 1, 2012, formally dismissed
the petition without a hearing on June 5th and an appeal was filed on the 29th. The issues were:
Whether the PCRA court erred by denying the defendant post-conviction
relief," the petitioner's right to file a post sentence motion raising a claim that the
verdict was against weight of the evidence, nunc pro tune and the right to file a
Petition for Allowance of Appeal nunc pro tune. [Sic]
Concise Statement of Matters Complained of on Appeal Pursuant to Pa.R.A.P. l 925(b ). The
court filed a Pa.R.A.P. 1925(a) opinion addressing those issues on September 17, 2012, but on
July IO, 2013, this Court entered a memorandum noting the defendant's prose petition for leave
to file a petition for allowance of appeal nunc pro tune and our Supreme Court's order of April
14, 2009, and ruled: "Under the circumstances of this case, we deem Appellant's PCRA petition
to be premature. Until the status of Appellant's direct appeal is finally resolved in accordance
with our Supreme Court's April 14, 2009 orde_r, the PCRA court lacks jurisdiction to consider
Appellant's PCRA petition." Commonwealth v. Alston, No. 1843 EDA 2012 (Pa.Super. 2013).
It then quashed the appeal, "since the PCRA court was without jurisdiction to enter" the order
dismissing the petition, and remanded with the instruction that the court comply with the Court's
order of April 14•h_ On August 13 and 14, 2014, the court conducted a hearing on whether his
appellate counsel abandoned him at which the Commonwealth called that attorney to the stand.
Q. Do you recall the date that the Superior Court affirmed the convictions?
A. I believe it was July 23, 2008.
Q. And did you advise the defendant of the Superior Court's decision?
A. I sent him a letter on August 1, 2008 advising him of the decision and
enclosing the opinion of the Superior Court.
[Whereupon the letter was marked and identified and the witness asked to read it].
A. Sure. "Dear Ronald, I am enclosing a copy of the Superior Court's opinion in
the above-captioned matter in which they deny your appeal and affirm the
decision of the trial court. Taking into account your desire to raise the
3
Counsel filed a second amended petition on June 7, 2011, but it reads the same as the first.
3·
ineffectiveness of trial counsel and the small chance that the Supreme Court will
accept your appeal, your best option now is to file a petition under the Post
Conviction Relief Act. Please be advised that a PCRA petition must be filed
within one year from July 23, 2008 or you will be barred from raising your claims
of ineffective assistance of counsel. I am also enclosing copies of all discovery
materials in my possession. Please contact me if you wish to discuss the matter
further. Very truly your[s], Neal M. Masciantonio."
Q. Did you ever receive a response from the defendant?
A. I did not.
Q. In his pleading, the defendant claims that he expressed a continued interest
throughout the process to exhaust all statewide' remedies.
Do you remember him telling you that?
A. No, I don't remember him telling me that.
Q. Now, at some point later on in the case, did you ever receive correspondence
from the Pennsylvania Supreme Court regarding this case?
A. Yes.
Q. And did you respond to that?
A. Yes.
[Whereupon counsel's letter responding to the Supreme Court's inquiry was
marked and identified and the witness asked to read it.]
A. "Since I received no response from Mr. Alston, I made the decision not to file
a petition for allowance of appeal after reviewing the standards set forth in PA
Rule of Appellate Procedure 1114, Considerations Governing Allowance of
Appeal. As I advised Mr. Alston, it was very unlikely that the Supreme Court
would accept the case for review since it was not a case of first impression, nor
did the decision conflict with Supreme Court decisions. In addition, it was my
understanding that Mr. Alstori was anxious to pursue relief under the Post
Conviction Relief Act since the beginning. His principal claim was the
ineffectiveness of trial counsel. In an earlier letter dated October 26, 2006, I made
a point of advising Mr. Alston that I did not raise any claims of ineffectiveness of
trial counsel in my brief because pursuant to Commonwealth versus Grant those
claims should be raised in a PCRA proceeding; see attached letter. Contrary to
. Mr. Alston's allegation,- I was not aware that he ever advised me that he wished to
pursue all avenues of direct appeal, including a petition of allowance of appeal.
His letters to me focused on the ineffectiveness of counsel issue. And in fact, in
an earlier letter, he requested all discovery materials in my possession so that he
could get to work on the PCRA claims. I included those discovery materials with
my letter of August 1, 2008 enclosing the Superior Court's opinion. Finally, I
emphatically deny any suggestion that I abandoned Mr. Alston following the
decision of the Superior Court. I continued to communicate and consult with him
to
following the filing of the brief to Superior Court, including forwarding him
discovery materials and voluminous notes of testimony from his trial which I
copied at my own expense. If requested or if warranted in my judgment, I
certainly would've filed a petition for allowance of appeal."
Q. Thank you. Now, do you recognize Commonwealth's Exhibit-3?
A. Yes.
Q. And what is it?
4
A. It's my letter enclosing the brief that was filed with Superior Court.
Q. And did you attach [the letters to the defendant and the Superior Court just
described] to the letter that you wrote to the Supreme Court?
A. Yes.
Q. Counsel, did the defendant ever ask you to file a petition for allowance of
appeal?
A.No.
Q. What is your standard practice when a defendant asks you to file a petition for
allowance of appeal?
A. I would file a petition for allowance of appeal.
Q. Had defendant asked you to file a petition for allowance of appeal, would you
have done it?
A. Yes.
Notes of Testimony, Hearing Volume 1, August 13, 2014, pp. 4-11. On cross examination the
attorney denied receiving any response to his letter to, nor any letters or calls after sending it
from, the defendant. Id. pp. 11-18. The defendant's testimony was a rambling insistence that he
did not receive the letter the attorney described, calling it a fake, though he admitted to receiving
the transcripts, and wrote many letters to the attorney asking him about pursuing his appeal; he
claimed that he learned that he lost his appeal and that no allocatur petition was filed by "writing
the dockets." Id. pp. 19-25. · On cross, the Assistant District Attorney noted that he did not have
copies of his letters, though he insisted that he sent some of them to the Supreme Court with his
petition, and that, although the prison to which the letter was mailed did keep records of legal
mailings being received for and being given to prisoners, and hence would also show that letters
were not received, he did not bring copies of those records to the hearing either. Id. pp. 25-28.
Q. And in those letters, do you ask him to file a petition for allowance of appeal
for you?
A. No. In these letters, it's just -- I have yet to receive any documents that you
were going to send me that you said you would send me at your earliest
convenience - I'm trying to see anything about the Supreme Court.
No, it don't got [sic] Supreme Court, but it say appellate proceedings. I didn't
specifically say -- when I write, I just be writing about my appeal. I don't
specifically say --
Q. So you never asked about the Supreme Court or requested anything about the
Supreme Court?
A. Specifically, no.
5
Id. pp. 28-29. The court-adjourned to allow defense counsel to get copies of whatever the
defendant sub�itted with his petition to the Supreme Court.
The next day counsel advised the court that she asked the Supreme Court clerk for a copy
of the letter which appeared on the docket as being the application for relief but was advised that
there was no digitalized or computerized filings and that the Supreme Court did not have a file
oh the matter as they purged all their files "as late as 2009." Notes of Testimony, Hearing
Volume l, August 14, 2014, pp. 4�5. Counsel introduced copies of letters from the defendant to
his appellate counsel but they all predated the Superior Court's affirmance of his judgment of
sentence; she acknowledged that he could not produce a copy of his letter to the Supreme Court
which, it was explained, was sent in response to his attorney's letter to it. Id pp. 6-19. Those
letters apparently explain the Court's order of May gth marking the case closed, it having most
likely decided that the defendant did not ask his attorney to seek allocatur and, therefore, the
attorney had not abandoned him. After hearing argument, the court ruled that the defendant had
not been abandoned by his attorney and there was, therefore, no basis for proceeding with the
allocatur petition, in that the order was to proceed with that appeal only if the court found
counsel had abandoned him. In view of the extenuating circumstances, the court also ruled. that
counsel would be permitted to file an additional amended petition to ensure the defendant's
PCRA rights were protected, including therein whatever counsel thought was relevant from that
proceeding and the previous petitions. Id. p. 32. On May 4, 2015, counsel filed a motion to
withdraw asking the court to appoint new counsel for personal reasons. On June 3rd the court
granted the motion and present counsel was subsequently appointed. He filed the amended
petition which is subject in this appeal on August 29, 2016. The Commonwealth filed a Motion
to Dismiss on October 3, 20 l 7, the court issued a Rule 907 notice of intent to dismiss for lack of
merit on November 81h, formally dismissed the petition on January l 0, 2018, and this appeal
6
followed on the 261h. In a 'Pa.R.A.P. 1925(b) statement of errors complained of on appeal,
present counsel stated the issues in the same terms as presented in the amended petition.
II. PCRA PETITION
The claims were (1) that (a) the defendant's first trial counsel was ineffective for failing
to notify him of his intention to withdraw and (b) his trial counsel had a conflict of interest and
was ineffective for failing to (2) object to hearsay evidence, (3) investigate whether Charles
Wesley had implicated him, (4) object to Detective Ronald Dove's "conflicting interest during
trial" and to (5) file a motion that the verdict was against the weight of the evidence, and (6).
newly discovered evidence of Detective Dove's having been fired and charges being brought
against him.4 Accompanying the amended petition was a twenty page document also titled an
amended petition but is more like a memorandum of law. The court will refer to both as simply
the petition. It consisted of a rendition of the Commonwealth's evidence and a repetition of the
underlying claims, a summary of the law applicable to pleading and proving, and the criteria to
be employed by the courts in evaluating and ruling on, PCRA claims, followed by what
purported to be factual argument in support of the underlying claims. That factual support,
however, consisted entirely of general allegations of what counsel should or should not have
done followed by the bald assertions that those accusations alone where sufficient to meet the
defendant's burden of pleading and proving entitlement to PCRA relief.. Nowhere in the petition,
with only three very minor and inconsequential exceptions, did counsel cite to any facts on or off
the record to demonstrate that those actions or inactions were in any way inconsistent with
reasonably competent legal representation, that counsel had no reasonable bases for them, or
how the defendant was harmed by them. After summarizing the general law, the court will
address each underlying claim in the order set forth above.
4
The court has rearranged the claims as presented by counsel for simplicity of rendering and discussion.
7
III. APPLICABLE LAW
We begin by rioting our standard of review. We have said in a prior case:
When examining a post-conviction court's denial of relief, our
scope of review is limited to a determination of whether the court's
findings are supported by the record and are otherwise free of legal
error. The findings of the post-conviction court will not be disturbed
unless they have no support in the record. Additionally we note that
there is no absolute right to a hearing pursuant to the PCRA. Rather,
the post-conviction court may elect to dismiss a petition ifit has
thoroughly reviewed the claims and determined that they are utterly
without support in the record.
Commonwealth v. Neal, 713 A. 2d 65 7, 660 (Pa. Super.1998) quoting
Commonwealth v. Schultz, 707 A.2d 513, 516 (Pa.Super.1997) (internal citation
omitted).
To be eligible for relief pursuant to the PCRA, an appellant must first
establish that his conviction or sentence resulted from one or more of the
enumerated errors or defects found in 42 Pa.CS.A. § 9543(a)(2). An appellant
must also establish that the issues raised in the PCRA petition have not been
previously litigated or waived. 42 Pa.CS.A. §§ 9543(a)(3) and 9544. Finally, the
appellant must demonstrate that failure to litigate the issue prior to trial, during
trial, or on direct appeal could not have resulted from any "rational, strategic or
tactical decision by counsel." 42 Pa.CS.A. § 9543(a)(4). Commonwealth v.
Williams, 730 A.2d 507, 510 (Pa.Super.1999).
***
The standard for determining ineffective assistance of counsel is well settled.
In order to succeed on an ineffectiveness of counsel claim, the petitioner is
required to make the following showing: (1) that the claim is of arguable merit;
(2) that counsel had no reasonable strategic basis for his or her action or inaction;
and (3) that, 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. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999). We
presume counsel is effective and place upon appellant the burden of proving
otherwise. Commonwealth v. Carpenter, 555 Pa. 434, 449, 725 A.2d 154, 161
(1999) citing Commonwealth v. Marshall, 534 Pa. 488, 633 A.2d 1100 (1993).
Commonwealth v. Brown, 767 A.2d 576, 580, 581 (Pa.Super. 2001). "Our standard of review in
an appeal from the grant or denial of PCRA reliefrequires us to determine whether the. ruling of
the PCRA court is supported by the record and is free from legal error." Commonwealth v.
Lesko, 609 Pa. 128, 15 A.3d 345, 358 (2011).
8
The remaining claims allege ineffective assistance of resentencing counsel. In
order to obtain relief based on a claim of ineffectiveness, a PCRA petitioner must
satisfy the performance and prejudice test set forth in Strickland v. Washington,
466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Pennsylvania, we
have applied the Strickland test by looking to three elements. Thus, in order to
succeed on a claim of ineffectiveness, the petitioner must establish that: ( l) the
underlying claim has arguable merit; (2) no reasonable basis existed for counsel's
actions or failure to act; and (3) petitioner suffered prejudice as a result of
counsel's error such that there is a reasonable probability that the result of the
proceeding would have been different absent such error. Commonwealth v.
Pierce, 515 Pa. 153, 527.A.2d 973, 975 (1987). Additionally, we note, the Sixth
Amendment right to counsel is recognized "not for its own sake," but because of
the effect it has on the accused's right to a fair trial. See Lockhart v, Fretwell, 506
US 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993); see also Strickland, 466
U.S. at 689, 104 S.Ct. 2052 ("Moreover, the purpose of the effective assistance
guarantee of the Sixth Amendment is not to improve the quality of legal
representation .... The purpose is simply to ensure that criminal defendants receive
a fair trial."). For these reasons, counsel is presumed to have rendered effective
assistance. Both the U.S. Supreme Court and this Court have made clear that a
court is not required to analyze the elements of an ineffectiveness claim in any
particular order of priority; instead, if a claim fails under any necessary element of
the Strickland test, the court may proceed to that element first. Strickland, supra;
Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 701 (1998).
***
When evaluating ineffectiveness claims, "judicial scrutiny of counsel's
performance must be highly deferential." Strickland, 466 U.S. at 689, 104 S. Ct.
2052. Indeed, few tenets are better settled than the presumption that counsel is
effective. Commonwealth v, Daniels, 600 Pa. 1, 963 A.2d 409, 427 (2009). This
presumption arises from the recognition that it is all too easy for the defendant or
the court to second-guess a strategy that has proven unsuccessful: Rather, a
reviewing court must make every effort "to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel's challenged conduct, and
to evaluate the conduct from counsel's perspective at the time." Strickland, 466
US. at 690, 104 S.Ct. 2052. "Generally, where matters of strategy and tactics are
concerned, counsel's assistance is deemed constitutionally effective if he chose a
particular course that had some reasonable basis designed to effectuate his client's
interests." Commonwealth v. Puksar, 597 Pa. 240, 951 A.2d 267, 277 (2008)
(quoting Commonwealth v. Miller, 572 Pa. 623, 819 A.2d 504, 517 (2002)). The·
U.S. Supreme Court explained a reviewing court's role in making this
determination when it stated:
[t]he court should keep in mind that counsel's function, as
elaborated in prevailing professional norms, is to make the
adversarial testing process work in a particular case. At the same
time, the court should recognize that counsel is strongly presumed
to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.
9
Strickland, 466 US. at 690, 104 S.Ct. 2052.
Id. A.3d at 373-74, 380. "A failure to satisfy any prong of the test for ineffectiveness will
require rejection of the claim. [Commonwealth v.] (Michael) Pierce, [567 Pa. 186,] 786
A.2d [203 (2001)] at 221-22; see also Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d
69 3, 701 (1998) (' If it is clear that Appellant has not demonstrated that counsel's act or
omission adversely affected the outcome of the proceedings, the claim may be dismissed
on that basis alone and the court need not first determine whether the first and second
prongs have been met.')." Commonwealth v. Fulton, 574 Pa. 282, 830 A. 2d 567, 572
(2003). As will be shown, counsel's submissions here did not come close to meeting any
of the Strickland/Pierce standards, especially the third.
We find that the language of the PCRA does not create a higher burden on a
defendant to show ineffective assistance of counsel than the standard for proving
ineffectiveness on direct appeal. Both the PCRA language and Pierce reflect two
aspects of the same standard: Strickland's test for determining when counsel's
ineffectiveness prejudiced the defendant. Pierce and its progeny adopted the
"reasonable probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different" definition of prejudice and largely
ignored other. language in Strickland concerning the scope of the ineffectiveness
inquiry as a determination of fundamental fairness and the reliability of the results
of the proceeding. The PCRA definition, however, mirrors the reliability-of-the-
result facet of Strickland, which Pierce and its progeny have de-emphasized in
favor of the more easily apprehended "prejudice" test. Strickland's admonition
that "[i]n every case the court should be concerned with whether...the result of the
particular proceeding is unreliable because of a breakdown in the adversarial
process," Strickland, 466 U.S. at 696, 104 S. Ct. 2052, finds its echo in the
following language from the PCRA:
(2) [t]hat the conviction or sentence resulted from one or more of
the following:
(ii) ineffective assistance of counsel which, in the circumstances of
the particular case, so undermined the truth-determining process
that no reliable adjudication ofguilt or innocence could have
taken place.
42 Pa.CS. §9543 (emphasis added).
Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 332 (1999).
In the case at bar Appellant has not been denied the right to appeal. Rather,
counsel is merely faulted for forgoing some of the issues which the client wished to
raise. In such a case.jhe relief available to an appellant for a claim that PCRA
counsel's judgment was exercised in a legally ineffective manner is an evaluation of
the claims prior counsel has forgone for a determination of ineffectiveness. See
Commonwealth v. Travaglia, 541 Pa. 108, 661 A.2d 352, 367-68 (Pa.1995).
Therefore, we will grant relief only if Appellant has shown that "counsel's conduct,
by action or omission, was of questionable legal soundness; that the conduct
complained of had no reasonable basis designed to effectuate the client's interest;
and that counsel's conduct had an adverse effect on the outcome of the proceedings."
Commonwealth v. Clark, 551 Pa. 258, 710 A.2d 31, 35 (Pa.1998). If it is clear that
Appellant has not demonstrated that counsel's act or omission adversely affected the
outcome of the proceedings, the claim may be dismissed on that basis alone and the
court need not first determine whether the first and second prongs have been met.
Travaglio, supra, at 357. With these standards in mind, we turn to consider the
claims raised in this appeal which the court below did not address.
Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 701 (1998) (footnotes omitted).
Trial counsel's failure to gather and marshal said evidence on appellant's
behalf could constitute ineffectiveness only if such evidence existed. A search of
the record and briefs, however, does not reveal any facts which would suggest
appellant's amenability to special treatment or rehabilitation programs.
Appellant's current counsel offers nothing more than boilerplate allegations of
amenability. Without more, we will not conclude that trial counsel was ineffective
in failing to petition for appellant's transfer to juvenile court. Assertions of
ineffectiveness in a vacuum cannot be ineffectiveness. Counsel who is alleging
ineffectiveness must set forth an offer to prove at an appropriate hearing sufficient
facts upon which a reviewing court can conclude that trial counsel may have, in
fact, been ineffective. This Court will no longer consider claims of ineffective
assistance of counsel in the abstract. Boilerplate allegations of amenability are
insufficient to warrant remand for an evidentiary hearing on appellant's suitability
for treatment under the juvenile court system. Thus, this issue of ineffectiveness is
without merit.
Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332, 1335 0981).
As noted, although appellant occasionally makes reference to his counsel being
ineffective with respect to his seven waived claims of record-based error, he does
not actually develop any of those claims of ineffective assistance of counsel in any
meaningful fashion. The closest appellant comes to crafting a discernible argument
is in Argument I, where he asserts, in the concluding paragraph, that trial counsel
was ineffective for failing to object to the trial court's voir dire questions
concerning capital punishment which, he claims, led to the exclusion of jurors who
were not" 'irrevocably committed' to vote against the death penalty." Appellant
11
"submits" that counsel did not have a reasonable strategic basis for failing to
object, but then admits that the "record is silent" on the point and makes no proffer
respecting counsel. Instead, he requests that we remand for an evidentiary hearing
so that he may discover whether counsel in fact had a reasonable basis for failing to
object.8 Appellant does not address at all the Strickland/Pierce prejudice
requirement. Claims of ineffective assistance of counsel are not self-proving; this
undeveloped claim of ineffectiveness is insufficient to prove an entitlement to
relief. Appellant's assertions of counsel's ineffectiveness with respect to other of
his waived claims of record-based error, which are stated. in even balder terms, fail
for the same reason. See Commonwealth v. Bond, 819 A.2d 33, ----. 2002 WL
1958492, at *4 (Pa. Aug.23, 2002) (reaffirming that "boilerplate allegations of
ineffectiveness of PCRA counsel ... , for failing to raise these claims below, ... fail
v.
because they are underdeveloped."); Commonwealth Bracey, 568 Pa. 264, 795
A.2d 935, 940 n. 4 (2001) ("Such an undeveloped argument, which fails to
meaningfully discuss and apply the standard governing the review of
ineffectiveness claims, simply does not satisfy Appellant's burden of establishing
that he is entitled to any relief'); Commonwealthv. Abdul Salaam, 808 A. 2d 558,
560 n. 3, 2001 WL 34041795, at *1 n. 3 (Pa.2001) (same); (Michael) Pierce, 786
A. 2d at 221 (appellant cannot prevail on claim of ineffective assistance of counsel
when claim is not developed); Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d
1332, 1335 (] 981) (mere abstract or boilerplate allegations of ineffectiveness
"cannot be ineffectiveness"). Thus, these versions of the claims fail.
8 With respect to appellant's request for an evidentiary hearing, we
note that "[a]n evidentiary hearing ... is not meant to function as a
fishing expedition for any possible evidence that may support
some speculative claim of ineffectiveness." Commonwealth v.
Scott, 561 Pa. 617, 752A.2d871, 877n. 8(2000).
Commonwealth v. Jones, 571 Pa. 112, 811 A.2d 994, 1003 (2002). In those last two quotations
the Court set forth the unmet burdens of pleading and proof most applicable to counsel's
presentation of the underlying claims here.
1. Prior Counsels' Failure to Notify of Withdrawal and Conflict oflnterest
The stated "factual" bases for these claims was that the defendant's first trial counsel
withdrew because of a fee dispute and the court appointed a member of that attorney's firm to
represent him. Counsel claimed that the second attorney was; therefore, unprepared to properly
defend the defendant or, if he was, the fee dispute with his Jaw firm rendered him disloyal to the
defendant's interest. Counsel simply conjured up these spurious allegations without citing to any
12
real facts whatsoever to demonstrate that any of that occurred. He did not note when the attorney
withdrew or the second attorney appointed or how much time appointed counsel had to prepare
before the defendant went to trial. Nor did counsel cite any actions the attorney took or failed to
take as a result of his alleged unpreparedness.
(a) Failure to Notify Defendant of Counsel's Intention to Withdraw
Counsel asserted that the defendant's first attorney failed to notify him of his intention to
withdraw which deprived the defendant of the opportunity "to voice protest regarding the lack of
communication between him and counsel." Counsel did not mention what the defendant would
have said in protest, or what was the nature of the fee dispute, nor describe what communications
the defendant wanted to assert or receive. Without being presented with any evidence to the
contrary, it can be assumed that the first attorney filed a motion to withdraw for the usual reason,
the defendant could no longer afford him, of which the defendant was surely notified and given
the opportunity to be heard, and that the court gave the matter all due consideration. If the
attorney had not attested to the fact that the defendant was notified and had not received any
indication from him that he wished to contest the motion, the court would have seen to it that he
was and given that opportunity if he so desired. The fact that the second attorney was with the
first's law firm most likely enhanced his ability to prepare for trial having been able to readily
receive a full briefing if he had not become familiar with the case before he was appointed, and
have the ready ability to consult with him as things developed. The judge who assigned the
attorney, as this judge certainly would, probably considered their mutual employment a plus for
the defendant. Without any evidence to the contrary, the PCRA court employed the assumption
of counsel's competent effectiveness and deemed it very likely that the attorneys consulted with
one another and that if the new attorney felt he needed more time to prepare he would have asked
for more time and the court would have readily granted it. "[M]ere abstract or boilerplate
13
allegations of ineffectiveness 'cannot be ineffectiveness."' Jones, supra, quoting Pettus, supra.(b) Counsel's Conflict of Interest
Counsel's argument here was that, because of the ( undefined) fee dispute with the
defendant's privately retained counsel, assigned counsel must have let his loyalty to his firm
outweigh his duty to defend his client. That is simply a bald-faced fabrication. There is
absolutely nothing on the record to support that untoward assumption, and counsel pointed to
nothing off the record to even remotely suggest it. The fact that one lawyer was allowed to
withdraw, probably because the defendant was unable to pay a retainer, would have no effect on
a second lawyer's ability to do his job properly while being paid by the state, even if that
attorney were a member of the first attorney's law firm. Counsel's tacit assumptions are that the
defendant must have owed the attorneys' firm money and that the second lawyer must, therefore,
have given his case little thought, whereas common knowledge dictates that privately retained
criminal lawyers demand retainers in advance in order to be sure they get paid by clients who are
dissatisfied with the results of their cases. Counsel cited two cases to support his theory, the first
for the proposition that "the Supreme Court could not be certain whether the defense attorney
was influenced in his basic strategic decisions by the interests of the employer who hired him",
and the other for the proposition that "In this vein, courts sometimes assess adverse effect by
questioning whether the record shows that counsel 'pulled his punches,' i.e., failed to represent
the defendant as vigorously as he might have done had there been no conflict." Counsel made no
attempt to compare the facts in those cases to those here, simply implying that they were akin by
quoting the courts out of context and employing innuendo. Those cases dealt with facts not even
remotely similar to those _here. The holdings in those cases must be thoroughly reviewed in
order to fully demonstrate how remotely the principles counsel cited from them apply to the
meager facts and bald conclusions he cited in this case.
14
The first case concerned the revocation of probation of former employees of an adult
theatre and bookstore, who had been convicted for distributing obscene materials, when they
failed to make installment payments on their fines as required as a condition for probation. The
Supreme Court held that the judgment was to be vacated and the case remanded with instructions
for determination of whether there existed a conflict of interest of employees' counsel, who also
represented the employer, such as to constitute a violation of employees' due process rights.
Courts and commentators have recognized the inherent dangers that arise
when a criminal defendant is represented by a lawyer hired and paid by a third
party, particularly when the third party is the operator of the alleged criminal
enterprise. One risk is that the lawyer will prevent his client from obtaining
leniency by preventing the client from offering testimony against his former
employer or from taking other actions contrary to the employer's interest. Another
kind of risk is present where, as here, the party paying the fees may have had a
long-range interest in establishing a legal precedent and could do so only if the
interests of the defendants themselves were sacrificed. As suggested above, the
factual setting of this case requires the Court to take note of the potential unfairness
resulting from this particular third-party fee arrangement. Petitioners were mere
employees, performing the most routine duties, yet they received heavy fines on the
apparent assumption that their employer would pay them. They now face prison
terms solely because of the employer's failure to pay the fines [as he had in a
number of previous cases], having been represented throughout by a lawyer hired
by that employer. The potential for injustice in this situation is sufficiently serious
to require us to consider whether petitioners have been deprived of federal rights
under the Due Process Clause of the Fourteenth Amendment.
***
Where a constitutional right to counsel exists, our Sixth Amendment cases
hold that there is a correlative right to representation that is free from conflicts of
interest. E.g., Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333(1980); Hollowayv. Arkansas, 435 U.S. 475, 481, 98S.Ct. 1173, 1177, 55
L.Ed.2d 426 (1978). Here, petitioners were represented by their employer's
lawyer, who may not have pursued their interests single-mindedly. It was his duty .
originally at sentencing and later at the revocation hearing, to seek to convince the
court to be lenient. On the record before us, we cannot be sure whether counsel
was influenced in his basic strategic decisions by the interests of the employer
who hired him. If this was the case, the due process rights of petitioners were not
respected at the revocation hearing, or at earlier stages of the proceedings below.
It is, however, difficult for this Court to determine whether an actual conflict
of interest was present, especially without the benefit of briefing and argument on
this issue. Nevertheless, the record does demonstrate that the possibility of a
conflict of interest was sufficiently apparent at the time of the revocation hearing
15
to impose upon the court a duty to inquire further. The facts outlined above were
all made known at that time. The court must have known that it had imposed
disproportionately large fines-penalties that almost certainly were increased
because of an assumption that the employer would pay the fines. The court did
know that petitioners' counsel had been provided by that employer and was
pressing a constitutional attack rather than making the arguments for leniency that
might well have resulted in substantial reductions in, or deferrals of, the fines.
These facts demonstrate convincingly the duty of the court to recognize the
possibility of a disqualifying conflict of interest. Any doubt as to whether the
court should have been aware of the problem is dispelled by the fact that the State
raised the conflict problem explicitly and requested that the court look into it.
Woodv. Georgia, 450 US 261, 271-73, 101 SCt. 1097, 1103-04, 67 L.Ed.2d 220 (1981)
(footnotes omitted). Counsel here pointed to no facts indicating that trial counsel devoted his
attention to his law firm more then to his client. Cases where actual conflicts were apparent from
the record are legion and were thoroughly discussed in the other case counsel cited, but none of
them dealt with situations even remotely like the one here.
The primary difficulty with Appellant's conflict-of-interest-based per-se
prejudice claim is that the conflict-of-interest framework, as it has been developed
for purposes of [United States v.] Cronic[, 466 US 648, 104 S.Ct. 2039, 80
L.Ed.2d 657 (1984),]-style presumed prejudice in the Holloway [v. Arkansas, 435
US. 475, 98SCt. 1173, 55L.Ed.2d426(1978)]/[Cuylerv.]Sullivan[,446US.
335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)] line of cases, pertains only to dual
representation, that is, representation of more than one client, where the clients
have diverging interests. See, e.g., Commonwealth v. Tedford, 598 Pa. 639, 728,
960 A. 2d 1, 54 (2008) ("An actual conflict of interest is evidenced whenever
during the course of representation, the interests of appellant-and the interests of
another client towards whom counsel bears obligations--diverge with respect to a
material factual or legal issue or to a course of action." (internal quotation marks
omitted)). The Supreme Court has characterized these situations as subsuming an
"active representation" of conflicting interests, see, e.g., Mickens [v. Taylor,] 535
US [162] at 166, 122 SCt. [1237] at 1241 [152 L.Ed.2d 291 (2002)] (reciting
that the Court has foregone inquiry into actual prejudice where "the defendant's
attorney actively represented conflicting interests"), which it has recognized as
being inherently suspect. See id. at 168, 122 S.Ct. at 1241 (quoting Holloway, 435
US. at 489-90, 98 S.Ct. at 1181). In this respect, i.e., in focusing on the "active"
nature of the conflict, the Court's concern centers primarily on the potential for an
attorney to alter his trial strategy due to extrinsic considerations stemming from
other loyalties, thereby distorting counsel's strategic or tactical decisions in a
manner that would not occur if counsel's sole loyalty were to the defendant. See,
e.g., Woodv. Georgia, 450 US. 261, 272, 101 S.Ct. 1097, 1103-04, 67 L.Ed.2d
220 (1981) (remanding for a determination of adverse effect where the Supreme
16
Court could not be certain whether the defense attorney was "influenced in his
basic strategic decisions by the interests of the employer who hired him"). In this
vein, courts sometimes assess adverse effect by questioning whether the record
shows that counsel "pulled his punches," i.e., failed to represent the defendant as
vigorously as he might have done had there been no conflict. See, e.g., United
States v. Nicholson, 475 F.3d 241, 251 (4th Cir.2007); United States v. Martinez,
630 F.2d 361, 362-63 (5th Cir.1980); People v. Clark, 52 Cal.4th 856, 131
Cal.Rptr.3d 225, 261 P.3d 243, 344 (2011); Beard v. Commonwealth, 302 S. W.3d
643, 647 (Ky.2010); Davis v. State, 897 So.2d 960, 970 (Miss.2004). Here,
however, Appellant is arguing for assumed prejudice on the theory that Weiss's
representation of Appellant conflicted with her own interest in obtaining monetary
compensation from work she could otherwise have performed for other clients.
Appellant has thus shifted the focus to the attorney's private interests as the basis
for the conflict-and hence, presumed prejudice-as opposed to centering her
contention on the difficulties that arise when an attorney attempts to represent
multiple parties with diverging interests.
a
We do not foreclose _the possibility that conflict of interest may arise apart
from dual representation-such as where an attorney is somehow beholden to the
interests of another, antagonistic party without actually functioning as that party's
attorney. Cf Goforth v. Commonwealth, 2009 WL 1110400, *8 (Ky. April 23,
2009) ( considering, albeit ultimately rejecting, a defendant's allegation of a
conflict of interest where· his attorney was paid by the same entity that provided
counsel for his co-defendant). Nor do we deny that an attorney's financial
interests can conflict with those of his client under some circumstances, see, e.g.,
In re Vioxx Prods. Liab. Litig., 650 FSupp.2d 549, 560 (E.D.La.2009) (positing
that, in a civil lawsuit where the amount of a contingency fee is at issue, a conflict
may exist between the claimant and his attorney who both seek to maximize their
own percentage of an award), or that a conflict with the attorney's private
interests may adversely affect the attorney's representation of his client, such as
where defense counsel is himself under criminal investigation. See Thompkins v.
Cohen, 965 F.2d 330, 332 (7th Cir.1992) (noting that a conflict may arise in such
a circumstance since counsel may fear that an acquittal will anger the district
attorney's office, which might then retaliate); see also United States v. Fulton, 5
F.3d 605, 610 (2d Cit.1993) (finding a conflict of interest where a government
witness alleged that counsel engaged in criminal conduct related to the charges for
which the defendant was on trial); United States v. Ellison, 798 F.2d 1102, 1106-
08 (7th Cir.1986) (finding a conflict where pursuit of the client's interests would
lead to evidence of counsel's malpractice). Thus, we credit Appellant's argument
to the degree it proposes that it is possible for an underpaid attorney's financial
interest in undertaking other, more remunerative work, to impinge on his or her
full devotion to the interests of the client at issue-at least in the sense that the
attorney may be incentivized to spend less time and fewer resources representing
that client as a result of such extrinsic financial pressures. See generally Fulton, 5
F.3d at 609 ("A situation in which the attorney's own interests diverge from those
of the client presents the same core problem presented _in the multiple
representation cases: the attorney's fealty to the client is compromised.").
17
In spite of the above, we remain doubtful that the asserted conflict here can
reasonably fit within the contours of the conflict-of-interest framework for Sixth-
Amendment presumptive prejudice, at least as the Supreme Court has developed
that doctrine, as it is of a different nature qualitatively from the other conflicts that
the Court has recognized. In this regard, we are guided by the Supreme Court's
own analysis of its Holloway/Sullivan line, in which it has criticized a tendency
among the lower federal courts to apply Sullivan "unblinkingly to all kinds of
alleged attorney ethical conflicts." Mickens, 535 US. at 174, 122 S.Ct. at 1245(internal quotation marks. and citation omitted). Even more pointedly, the Mickens
Court explained that such tribunals
have invoked the Sullivan standard not only when (as here) there is
a conflict rooted in counsel's obligations to former clients, but
even when representation of the defendant somehow implicates
counsel's personal or financial interests, including a book deal, a
job with the prosecutor's office, the teaching of classes to Internal
Revenue Service agents, a romantic "entanglement" with the
prosecutor, or fear of antagonizing the trial judge.
It must be said, however, that the language of Sullivan itself does
not clearly establish, or indeed even support, such expansive
application. "[Ujntil," it said, "a defendant shows that his counsel
actively represented conflicting interests, he has not established the
constitutional predicate for his claim of ineffective assistance."
Id. at 174-75, 122 S.Ct. at 1245 (quoting Sullivan, 446 US. at 350, 100 S.Ct. at
1719) ( emphasis altered; citations omitted). Thus, because Mickens expressly
disapproved extending the Holloway/Sullivan conflict analysis to a broad category
that it couched in terms of "counsel's personal or financial interests," we are not
at liberty, absent further material guidance from that Court, to apply Sullivan so as
to find structural error grounded on the fee ceiling imposed by the county court in
the present case. Accordingly, Appellant cannot prevail on her claim that she was
constructively denied counsel due to the asserted conflict grounded on Weiss's
financial interest in working on cases for more remunerative clients during the
relevant time period.
Commonwealth v. King, 618 Pa. 405, 57 A.3d 607, 619-21 (2012) (footnote omitted). Not only
did counsel here fail to point to any factual evidence of a conflict resembling those described in
those two cases and those cited therein, he didn't point to any such facts at all. Nor did he even
try to demonstrate how the alleged conflict affected his trial attorney's representation. Like
King, he expected the court to assume that there was and that it did based· simply upon the facts
that private counsel withdrew and appointed counsel worked for his law firm.
18
Appellant next claims that direct appeal counsel was ineffective for failing to
raise trial counsel's ineffectiveness for failing to disclose to appellant an "actual
conflict" of interest that compromised counsel's ability to zealously represent
appellant. Appellant alleges that while trial counsel, Louis Savino, Esquire,
represented him in the instant case, Attorney Savino was also representing Aaron
Montague (a.k.a. "Little Man"), whose car victim Andre Graves allegedly stole
shortly before he was murdered, at least according to a police statement provided
by Graves' friend, Charles Brown. According to appellant, Brown's statement
"put [Savino] on notice that Little Man ... had a clear motive for murdering Mr.
Graves." Appellant further alleges that, due to this supposed "actual conflict" of
interest, Savino never introduced evidence at appellant's trial that Graves stole
Montague's car, contending that such evidence would have established a motive
by another person for Graves' murder. In addition, appellant argues that "[t [he
PCRA court's ruling on this issue should be reversed because it applied the wrong
standard in assessing trial counsel's conflict."
***
An appellant cannot prevail on a preserved conflict of interest claim absent a
showing of actual prejudice. Commonwealth v. Karenbauer, 552 Pa. 420, 715
A.2d 1086, 1094 (1998). Nevertheless, we presume prejudice when the appellant
shows that trial counsel was burdened by an "actual'<=rather than mere
"potential"-conflict of interest. Commonwealth v. (Thomas) Hawkins, 567 Pa.
310, 787 A.2d 292, 297 (2001). To show an actual conflict of interest, the
appellant must demonstrate that: (1) counsel "actively represented conflicting
interests"; and (2) those conflicting interests "adversely affected his lawyer's
performance." Id. at 297-98 (quoting Commonwealth v. Buehl, 510 Pa. 363, 508
A.2d 1167, 1175 (1986) (quoting Cuyler v. Sullivan, 446 US. 335, 350, JOOS.Ct.
1708, 64 L. Ed. 2d 3 3 3 (1980) and holding that "[ a[ppellant ' s defense was not
prejudiced by the fact that, at a prior time, his counsel had represented a
Commonwealth witness")). Clients' interests actually conflict when "during the
course of representation" they "diverge with respect to a material factual or legal
issue or to a course of action." Commonwealth v. Padden, 783 A.2d 299, 310
(Pa.Super.2001); Commonwealth v. Toro, 432 Pa.Super. 383, 638 A.2d 991, 996
(1994),· Jn Interest of Saladin, 359 Pa.Super. 326, 518 A.2d 1258, 1261 (1986).
***
... Accordingly, the PCRA court did not err in determining that appellant had
failed to show an actual conflict of interest and that, therefore, there was no basis
upon which to presume that prejudice actually resulted to appellant from Savina's
prior representation of Montague. Because appellant's underlying claim of trial
counsel ineffectiveness lacks arguable merit, his claim that direct appeal counsel
was ineffective for failing to raise the conflict-of-interest claim necessarily fails.
Commonwealth v. Collins, 598 Pa. 397, 957 A.2d 237, 250, 251, 252 (2008) (citations to record
omitted). Other than the other ineffectiveness claims, which will be shown to be equally
meritless, counsel did not point to anything demonstrating trial counsel was lax in his defense.
19
We turn now to appellant's claim that trial counsel was ineffective because of
a potential conflict of interest. This claim is totally without merit. Trial counsel
fully disclosed the situation to the appellant as well as to the trial court and the
prosecuting attorney prior to participating in appellant's defense. Appellant raised
no objection at the time and, even now, does not point to any specific harm he
suffered as a result of the alleged conflict of interest. Therefore, he has failed to
adequately raise an ineffectiveness claim. See Commonwealth v. Wallace, 495 Pa.
295, 433 A.2d 856 (1981). This case need not be remanded for an evidentiary
hearing for appellant has failed to allege a claim which would be of arguable
merit. See Commonwealth v. Smith, 321 Pa.Super. 170, 467 A.2d 1307 (1983).
Commonwealth v. Craig, 345 Pa. Super. 542, 498 A.2d 957, 961 (1985) (Craig had argued that
he should have been provided private defense counsel because a secretary in the defender's
office where his trial counsel worked was the estranged wife of the prosecuting police officer).
This court was fully justified in rejecting these claims out of hand. Counsel's sole argument is
that trial counsel must have been unprepared because he was appointed. He does not mention
when he was appointed and it's not the court's obligation to look it up for him; it's the burden of
a PCRA petition to create and/or cite to a detailed record for the court. Nor did counsel cite to a
single fact that would indicate that counsel's alleged unpreparedness caused him to do something
harmful, or fail to do something essential, to the defense .
. . . To reiterate, the claim is that appellate counsel was ineffective for failing to
challenge trial counsel's lack of preparedness for trial, including his failure to
meet personally with Elliott. See PCRA Court Opinion ... (characterizing Elliott's
claim as encompassing the "failure to prepare for trial and failure to interview .
Elliot prior to trial"). As noted, in addition to demonstrating the arguable merit
and lack of reasonable basis prongs of the Pierce ineffectiveness test, the
governing standard requires a defendant to establish that he was prejudiced by
trial counsel's failure to meet with him in order to prepare adequately for trial.
This can be demonstrated by alleging beneficial information or issues that counsel
should have presented had he been prepared adequately, which would have
changed the outcome of the trial. Porter, 728 A. 2d at 896 ( citing Commonwealth
v. Travaglia, 54l_Pa. 108, 661 A.2d 352, 357 (1995) (requiring a defendant to
demonstrate prejudice in an ineffectiveness claim by demonstrating that "but for
the act or omission in question, the outcome of the proceedings would have been
different," and noting that a claim of ineffectiveness could be denied if the
petitioner fails to satisfy any one of the three Pierce prongs)).
Commonwealth v. Ellioll, 622 Pa. 236, 80 A.3d 415, 432 (2013), cert. denied, Elliott v.
20
Pennsylvania, 135 S.Ct. 50, 190 L.Ed.2d 54 (2014). " ... Commonwealth v. Porter, 556 Pa. 301,
728 A. 2d 890, 896 (1999) (holding that to establish ineffectiveness on the basis of alleged
inadequate pretrial consultation, the defendant must establish that counsel inexcusably failed to
raise issues that, had they been proffered, would have entitled him to relief) ... " Id. at 431.
2. Failure to Object to Hearsay Evidence
Counsel claimed that the testimony of the witness, Sharee Norton, that she heard one of
the defendant's say "there's Charles" and Wesley say "Oh shit, that's them, get out of here" and
that she talked to Wesley the day before she testified, told him she was scared to testify and that
she was aware that Wesley did not cooperate with the police and was unwilling to testify, was
inadmissible hearsay. His entire "factual" basis for this claim was "Counsel's failure to object to
the above implication based on inadmissible hearsay resulted in a confrontation clause violation,
as Wesley was not available to attest to whom he had allegedly referred to that day, overall
violating the Petitioner's Sixth and Fourteenth amendment rights." He cited in support a ruling
that "There are, however, circumstances that are so likely to prejudice the accused that the cost
of litigating their effect in a particularcase is unjustified." United States v. Cronic, 466 U.S.
648, 658-59, 104 S.Ct. 2039, 2046-47, 80 L.Ed.2d 657 (1984) (footnote omitted). Aside from
the fact that Cronic had nothing to do with a trial attorney's failure to object or hearsay, counsel
failed to explain why that testimony was hearsay, to what "implication" the testimony gave rise,
with what the defendant would have confronted Wesley, or how any of that would have altered
the outcome of his case. "It is well-established that counsel cannot be ineffective for failing to
make baseless or fruitless objections." Commonwealth. v. Webb, 491 Pa. 329, 421 A.2d 161,
I 65 (1980). In making the abo:1e cited statement, the Cronic Court was referring to a defense
counsel's virtual inability to render any legal assistance whatsoever.
21 ·
Respondent and two associates were indicted on mail fraud charges involving
the transfer of over $9,400,000 in checks between banks in Tampa, Fla., and
Norman, Okla., during a 4-month period in 1975. Shortly before the scheduled
trial date, respondent's retained counsel withdrew. The court appointed a young
lawyer with a real estate practice to represent respondent, but allowed him only 25
days for pretrial preparation, even though it had taken the Government over four
and one-half years to investigate the case and it had reviewed thousands of
documents during that investigation. The two codefendants agreed to testify for
the Government; respondent was convicted on 11 of the 13 counts in the
indictment and received a 25-year sentence.
***
While the Court of Appeals purported to apply a standard of reasonable
competence, it did not indicate that there had been an actual breakdown of the
adversarial process during the trial of this case. Instead it concluded that the
circumstances surrounding the representation of respondent mandated an
inference that counsel was unable to discharge his duties.
In our evaluation of that conclusion, we begin by recognizing that the right to
the effective assistance of counsel is recognized not for its own sake, but because
of the effect it has on the ability of the accused to receive a fair trial. Absent some
effect of challenged conduct on the reliability of the trial process, the Sixth
Amendment guarantee is generally not implicated. See United States v.
Valenzuela-Bernal, 458 US. 858, 867--869, 102 S.Ct. 3440, 3446-3447, 73
L.Ed.2d 1193 (1982); United States v. Morrison, 449 US, at 364-365, 101 S.Ct.,
at 667-668; Weatherford v. Bursey, 429 US. 545, 97 S. Ct. 837, 51 L.Ed.2d 30(1977). Moreover, because we presume that the lawyer is competent to provide
the guiding hand that the defendant needs, see Michel v. Louisiana, 350 US. 91,
100-101, 76S.Ct.158, 163-164, JOOL.Ed. 83(1955),theburdenrestsonthe
accused to demonstrate a constitutional violation. There are, however,
circumstances that are so likely to prejudice the accused that the cost of litigating
their effect in a particular case is unjustified.
Most obvious, of course, is the complete denial of counsel. The presumption
that counsel's assistance is essential requires us to conclude that a trial is unfair if
the accused is denied counsel at a critical stage of his trial. Similarly, if counsel
entirely fails to subject the prosecution's case to meaningful adversarial testing,
then there has been a denial of Sixth Amendment rights that makes the adversary
process itself presumptively unreliable. No specific showing of prejudice was
required in Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 3 9 L. Ed. 2d 34 7 (197 4),
because the petitioner had been "denied the right of effective cross-examination"
which" 'would be constitutional error of the first magnitude and no amount of
showing of want of prejudice would cure it.'" Id., at 318, 94 S.Ct., at 1111 (citing
Smith v. Illinois, 390 US 129, 131, 88 S.Ct. 748, 749, 19 L.Ed.2d 956 (1968), and
Brookhart v. Janis, 384 US. 1, 3, 86 S.Ct. 1245, 1246, 16 L.Ed.2d 314 (1966)).
Circumstances of that magnitude may be present on some occasions when
although counsel is available to assist the accused during trial, the likelihood that
22
any lawyer, even a fully competent one, could provide effective assistance is so
small that a presumption of prejudice is appropriate without inquiry into the actual
conduct of the trial. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. I 58
(1932), was such a case.
Cronic, supra, U.S. dt 649-50, 657-60, S. Ct. at 2041, 2046-47 (footnotes omitted). To compare
Norton's innocuous testimony to the "actual breakdown of the adversarial process" that occurred
in Cronic is the height of disingenuousness. "The Court has uniformly found constitutional error
without any showing of prejudice when counsel was either totally absent, or prevented from
assisting the accused during a critical stage of the proceeding." Id. n. 25. "Apart from
circumstances of that magnitude, however, there is generally no basis for finding a Sixth
Amendment violation unless the accused can show how specific errors of counsel undermined
the reliability of the finding of guilt." Id. n. 26. Counsel did not explain how the admission of
those little bits of information could possibly have prejudiced the defendant's case, nor why they
were inadmissible, which they certainly were not.
Appellant's next challenge is to the introduction of the unknown female's
statement, "He's bagging it up. He will be out." ...
Simply put, only slight evidence of the conspiracy is needed for a
coconspirator's statement to be introduced and the order of proof is discretionary.
A co-conspirator's statement is only inadmissible where it is the sole evidence of
the conspiracy. That is simply not the case herein. Although the co-conspirator's
statement was essential to establishing the conspiracy beyond a reasonable doubt,
it was not the exclusive evidence that a conspiracy existed. Before Appellant
exited his residence to deliver the drugs, Jane Doe exited the same residence and
approached the officer. Appellant, in accordance with Jane Doe's statement,
followed soon thereafter. As soon as Appellant completed his delivery of the
drugs, he rendezvoused with Jane Doe and reentered the premises that they both
had exited before the drug delivery. The surrounding actions of Appellant and
Jane Doe immediately before and after the drug transaction is some evidence of a
conspiracy. Thus, the Commonwealth demonstrated by a preponderance of the
evidence that a conspiracy existed. Hence, the statements were admissible
pursuant to the co-conspirator exception to the hearsay rule. Commonwealth v.
Johnson, 576 Pa. 23, 838 A.2d 663 (2003); Pa.R.E. 803(25)(£).1
1 The then applicable version of Pa.R.E. 803(25)(£) read:
23
The following statements, as hereinafter defined,
are not excluded by the hearsay rule, even though
the declarant is available as a witness:
"(25) Admission by party-opponent. The statement
is offered against a party. and is ....
(E) a statement by a co-conspirator of a party during
the course and in furtherance of the conspiracy. The
contents of the statement may be considered but are
not alone sufficient to establish .... the existence of
the ·conspiracy and the participation therein of the
declarant and the party against whom the statement
is offered under subdivision (E)."
Commonwealth v. Feliciano, 2013 PA Super 117, 67 A.3d 19, 26, 27 (2013), appeal denied, 622
Pa. 765, 81 A.3d 75 (2013). · Counsel's assertion that, had this testimony been excluded, the
defendant would not have been convicted, without even mentioning the overwhelming evidence
by which he was actually convicted, is simply inane. "Had this testimony been properly
excluded, the jury would still have had sufficient evidence to convict appellant of the various
crimes charged." Commonwealth v. Mescall, 405 Pa. Super. 326, 592 A.2d 687, 690 (1991),
appeal denied, 529 Pa. 656, 604 A.2d 248 (1992) (Complainant's testimony that she asked a
friend of the defendant's to ask him to at least let her have her clothes and, when she did so he
responded "I hate all women", although double hearsay, could not have inflamed the jury
because it acquitted him of simple assault and the failure to object was not ineffective
assistance). In addition to Cronic, counsel cited one other case in which the court held that
defense counsel was ineffective in failing to use the victim's inconsistent identification testimony
from the alleged accomplice's previous trial, in opening the door to the admission of testimony
concerning a bank robbery homicide investigation of codefendant, and in failing to investigate
and call certain defense witnesses. Berryman v. Morton, 100 F 3 d 1089 (Jd Cir. 1996). His
comparison of those failings to trial counsel's failure to object to Norton's testimony, by
describing the latter as "No trial strategy can attach to a decision not to object to inadmissible
24
hearsay when the record shows that the outcome of the proceedings would have changed,
especially when Petitioner is being denied his right to compulsory process, to confront his
accusers, constructive denial of counsel, due process of law, and a fair and impartial trial", is, to
say the least, an exercise in wild unsupported posturing.
3. Failure to Investigate Wesley's Implication of Defendant
Here counsel claimed that while the defendant and Wesley were in federal custody
together Wesley told him that he would testify that he was not one of the people who tried to
shoot him and that he told his retained counsel about it but that attorney never told appointed
counsel about it and the defendant was only able to mention it to him on the day of the trial.
Counsel did not deign to seek prior counsels' input into this allegation. Having not cited to any
evidence of any of that having actually occurred, the court could only assume that the only
source for that information was the defendant himself and it could thus lend it all the credence it
deserved: none whatsoever. A PCRA court cannot grant relief based upon a defendant's mere
unsupported assertions that he told his counsel relevant facts and counsel failed to act on them.
If that were adequate proof, every convicted criminal would be granted a new trial..
As our Supreme Court has also stated:
To prevail on a claim of trial counsel's ineffectiveness for failure
to call a witness, the [appellant] must show: (1) that the witness
existed; (2) that the witness was available; (3) that counsel was
informed of the existence of the witness or should have known of
the witness's existence; (4) that the witness was prepared to
cooperate and would have testified on appellant's behalf; and (5)
that the absence of the testimony prejudiced appellant. ·
Commonwealth v. Fletcher, 561 Pa. 266, 292, 750 A.2d 261, 275 (2000). Thus, trial
counsel will not be found ineffective for failing to investigate or call a witness unless
there is some showing by the appellant that the witness's testimony would have been
helpful to the defense. Commonwealth v. Auker, 545 Pa. 521, 548, 681 A.2d 1305,
1319 (1996). "A failure to call a witness is not per se ineffective assistance of
counsel for such decision usually involves matters of trial strategy." Id.
***
25
(D) EVIDENTIARY HEARING.-
( 1) Where a petitioner requests an evidentiary hearing, the petition
shall include a signed certification as to each intended witness
stating the witness's name, address, date of birth and substance of
testimony and shall include any documents material to that
witness's testimony. Failure to substantially comply with the
requirements of this paragraph shall render the proposed witness's
testimony inadmissible.
42 Pa. CS.A. § 9545(d)(l) (emphasis supplied).
***
Likewise, Appellant did not offer any evidence whatsoever to prove the
existence of Ms. Markhee or the substance of what Ms. Markhee could possibly
have testified to at trial, nor did he establish that Ms Markhee was known or
should have been known to trial counsel or that she was willing and available to
testify at trial on behalf of Appellant. He therefore cannot establish that trial
counsel was ineffective for failing to locate and call her as a witness at trial.
Fletcher, supra; See also Commonwealth v. Lopez, 559 Pa. 131, 150, 739 A.2d
485, 496 (1999), cert. denied, 530 U.S. 1206, 120 S.Ct. 2203, 147 L.Ed.2d 237(2000) (trial counsel will not be deemed ineffective for failing to call two
witnesses which appellant specifically named in his PCRA Petition, since
appellant did not provide any _objective proof that the witnesses actually existed or
were willing to testify on his behalf); Commonwealth v. Jones, 438 Pa.Super.
306, 652 A.2d 386 (] 995), appeal denied, 541 Pa. 635, 663 A.2d 688 (1995)
(where trial counsel is alleged to have been ineffective for failing to call witnesses
but there is no positive evidence that witness would have provided testimony
helpful to the defense there is no evidentiary basis for grant of new trial).
Commonwealth v. Brown, 767 A.2d 576, 58ls.S2, 584 (Pa.Super. 2001). "Where a defendant
claims that counsel was ineffective for failing to call a particular witness, we require proof of
that witness's availability to testify, as well an adequate assertion that the substance of the .
purported testimony would make a-difference in the case." Commonwealth v. Clark, 599 Pa.
204, 961 A.2d 80, 90 (2008) (uncalled witness's alleged testimony did not contradict state's
witness's testimony), cert. denied, Clarkv. Pennsylvania, 558 U.S. 1082, JJOS.Ct. 810, 175
L.Ed.2d 569 (2009). "As noted by the Commonwealth, Appellant failed to demonstrate that her
daughter was willing and able to testify at Appellant's trial. Thus, the claim fails for lack of
arguable merit." Commonwealth v. Tharp, 627 Pa. 673, 101 A.3d 736, 758 (2014). It is
26
inexplicable how counsel can seriously proffer this claim when his own stated basis for claim
number two above was that the witness's testimony about Wesley's not being willing to testify at
trial somehow prejudiced him. "Because we conclude that Appellant has not established
prejudice arising out of the absence of the witnesses' testimony or that such evidence would have
been beneficial to his defense, even if believed, we find no error in the PCRA court's decision to
dismiss this claim." Commonwealth v. Gibson, 597 Pa. 402, 951 A.2d I I 10, 1134 (2008).
Without the required certification, or any independent evidence whatsoever that Wesley actually
told the defendant that he would be willing to testify, the defendant has failed to demonstrate that
( 1) the purported witness would have actually testified to what the. defend�t claims he would,
i.e., that the witness actually existed, (2) the witness would have been available, (3) either
counsel was informed of the existence of the witness or should have known of the witness's
existence, (4) the witness was prepared to cooperate and would have testified on appellant's
behalf; and (5) the absence of the testimony prejudiced him. The defendant's unsupported
allegation cannot meet any of those criteria, particularly since he did not bring up this little piece
of information when he had the opportunity to do so at the hearing to determine whether his
appellate counsel deserted him while that attorney was on the witness stand.
4." Failure to Object to Detective Dove's Conflicting Interest
Counsel claimed that trial counsel should have objected to Officer Dove's testimony
because he had a conflict of interest in that he both "functioned as an investigator of the ...
crime" and was one of the officers who was caught in the line of fire at the time of the shooting.
This claim is patently absurd. Counsel cited no precedent for this unusual theory because there
is none. Nor did counsel explain how those facts could have possibly burdened the officer with a
conflict of interest or how they adversely affected the defendant. Every one of the police who
were caught in the line of fire also participated in the investigation of it and testified at trial.
27
There have been untold numbers of times when police officers are directly involved in some
aspects of a crime, as when a suspected perpetrator resists arrest for one example, participate in
the investigation of both the original crime and the ensuing one and testify for the prosecution at
trial. "We stress that 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."
Commonwealth v. Paddy, 609 Pa. 272, 15 A.3d 431, 443 (2011) ("Merely stating that a family in
the neighborhood was concerned because Ms. Whaley was talking to the police does not
constitute evidence that some (unnamed) individual in that family murdered her." Id. at 445.)
Counsel went on to simply state that "Counsel's failure to object and demonstrates [sic] the
inattentiveness necessary to show that this was not a reasonable strategy [and a failure to]
recognize that an error had occurred and required correcting [ which was] not a strategy designed
to effectuate the best interests of the child [sic]."
In accord with these well-established criteria for review, a petitioner must set
forth and individually discuss substantively each prong of the Pierce test.
Commonwealth v. James Jones, 583 Pa. 130, 876 A.2d 380, 386 (2005),·
Commonwealth v. (Aaron) Jones, 571 Pa. 112, 811 A.2d 994, 10,03 (2002);
Commonwealth v. Wharton, 571 Pa. 85, 811 A.2d 978, 988 (2002) ( "Claims of
ineffective assistance of counsel are not self-proving .... "); (Michael) Pierce, 786
A. 2d at 221 (noting that an appellant cannot prevail on claim of ineffective
assistance of counsel when claim is not developed); (Charles) Pierce, 515 Pa. 153,
527 A.2d 973. In multiple claims in this case, Appellant only addresses the first
prong, arguing that the underlying claim has arguable merit, followed by a bald
assertion of the lack of a reasonable basis and the fact of prejudice. Io Such
undeveloped claims, based on boilerplate allegations, cannot satisfy Appellant's
burden of establishing ineffectiveness. See Jones, 876 A.2d at 386; Commonwealth
v. Bracey, 568 Pa. 264, 795 A.2d 935, 940 n. 4 (2001) ("[s]uch an undeveloped
argument, which fails to meaningfully discuss and apply the standard governing the
review of ineffectiveness claims, simply does not satisfy Appellant's burden of
establishing that he is entitled to any relief."). Thus, where Appellant has failed to
set forth all three prongs of the ineffectiveness test and meaningfully discuss them,
he is not entitled to relief, and we are constrained to find such claims waived for
lack of development. As referenced above and discussed infra, many of the claims
asserted by Appellant fail on this basis.1 I
10 Although the merits analysis encompasses the argument that would
28
be made if this were a direct appeal, the petitioner must nevertheless
set forth herein the two other prongs of ineffectiveness, because Sixth
Amendment ineffectiveness claims are distinct from merits review.
Commonwealth v. Collins, 585 Pa. 45, 888 A.2d 564 (2005).
11 ... Therefore, where Appellant failed to do more than assert that
his claim has arguable merit, counsel lacked a reasonable basis for
their acts or omissions, and he was prejudiced by counsel's conduct,
the presumption that counsel were effective prevails. Appellant does
not meet his burden before this Court with regard to presenting
claims of ineffectiveness by simply citing to Strickland, 466 US
668, 104 S.Ct. 2052, 80 L.Ed.2d 674, emphasizing his perceived
difficulty with this Court's jurisprudence, and asserting that he
meets the three prongs of counsel ineffectiveness.
Commonwealth v. Steele, 599 Pa. 341, 961 A.2d 786, 797-98 (2008). Here, counsel's bald
conclusions that the detective's alleged, but actually nonexistent, conflict of interest somehow
disqualified him from testifying and prejudiced him were even less developed than Steele's.
"Counsel's failure to object prejudiced Petitioner by allowing the jury to weigh evidence that the
Petitioner was one of the shooters who had inadvertently fired at innocent bystanders, including
Detective Dove [ and allowed the jury] to consider this accusation made through Dove that
supported the Commonwealth's theory." That is tantamount to claiming unfair prejudice
because the Commonwealth was allowed to introduce evidence against the defendant in order to
prove its case. If that were the standard for demonstrating ineffective assistance of counsel, no
one would be in jail today.
The PCRA recognizes ineffectiveness claims as distinct claims-not labeling
mechanisms to evade the effect of waiver of the underlying claims. Claims of
ineffectiveness are subject to specific pleading and proof requirements under the
PCRA. Mere boilerplate assertions, such as those made here, are inadequate to
prove the effective denial of the right to counsel necessary to warrant PCRA-relief.
Furthermore, the PCRA provisions regarding ineffectiveness require no more
than what a constitutional ineffectiveness analysis has always required, regardless
of whether the claim is posed under the PCRA or at an earlier appropriate stage of
the litigation ....
Commonwealth v. Simmons, 569 Pa. 405, 804 A. 2d 625, 639 (2001) (footnote omitted).
29
5. Failure to Challenge the Weight of the Evidence
Here counsel submitted a summary of the principles of law governing weight of the
evidence claims and then devotes a single paragraph to the evidence that he claims shows that
the Commonwealth failed to prove its case. He simply notes that the witness, Sharee Norton, did
not identify the defendant until six months after the incident and claims that she was the only one
who did. Counsel himself pointed out above that she did not identify the defendant to the police
until she did because she was afraid to, and that second assertion is blatantly not true. She
positively identified the defendant as one of the shooters as did another eyewitness and the police
officers who chased and arrested him immediately after the incident. As noted above, this court
fully set forth all of the evidence in its opinion in the direct appeal and, even though Superior
Court did not assess that evaluation because it found the claim to have been waived, the court
need not do so again.
Appellant fails to discuss these claims in the context of the circumstances of the
case. Specifically, appellant has failed to make reference in relative fashion to other
evidence upon which the conviction was based, and in the absence of that
discussion, this court is unable to determine that no reliable adjudication of guilt or
innocence could have taken place at appellant's trial. No relief, therefore, is due.
Id. at 633. The Commonwealth presented its case over eight days of trial and counsel didn't
even mention any of the incriminating evidence it produced, let alone try to show how the simple
fact that one single witness's failure to come forward right away wouldhave refuted all that
really relevant evidence. The case law is absolutely clear that a PCRA petitioner cannot simply
rely on one single fact in evidence, completely ignore all the other damning evidence, and expect
to be granted a new trial. The court can summarily dismiss this claim the same way it did with
the same argument in his last appeal from the dismissal of his previous PCRA petition.
As phrased by the defendant in the petitions and l 925(b) Statement, and
putting it in the "performance and prejudice" format as set forth in the above
authority, if he had established that he was, in fact, abandoned by his attorney, he
30
was then required to demonstrate that he could prove, (1) that the underlying legal
claim, i.e., that the verdict was against the weight of the evidence, has "arguable
merit", (2) that counsel's action or omission lacked any reasonable basis designed
to serve his interests, i.e., that his attorney should have reasonably been aware that
the claim was meritorious and had no reason not to pursue it, and (3) that there is
a reasonable probability that the outcome of the proceedings would have been
different had counsel not been ineffective in the relevant regard, i.e., that he was
prejudiced by counsel's act or omission because a motion to dismiss based on a
lack of weight would most likely have been granted or a denial would have been
overruled. If he fails to demonstrate any of those three prongs, his claim fails.
And if he fails to demonstrate that there is probative evidence that can be ·
developed, the claim can be dismissed without a hearing. Here, the only
witnesses the defendant has identified whose credibility can be evaluated are
himself and his appellate counsel. However, while his only evidence is his own
unsupported allegations, and even those are merely his own subjective
assumptions, his attorney supplied documentary evidence to the contrary, and the
[Commonwealth v.] Dennis[, 597 Pa. 159, 950 A.2d 945, 953-4 (2008)] Court's
admonition is equally directed to the PCRA court's determination of the reliability
of the defendant's own allegations and any evidence to support it that he claims
exists, including his own admission that his appellate counsel averred that he did,
in fact, advise the defendant that there was no point in seeking allocatur. The
defendant fails ab initio because he makes no attempt whatsoever to demonstrate
the first prong.
He simply states that his attorney was remiss because he failed to preserve a
right to request an appeal and he was prejudiced because his verdict was against
the weight of the evidence; he makes no attempt whatsoever to demonstrate how
or why that was the case. If this were a direct appeal addressed solely to a weight
claim, the issue would have been waived for failing to adequately identify in a
concise manner the issues sought to be pursued on appeal in the 19 2 5 (b)
Statement. Commonwealth v. Dowling, 2001 PA Super 166, 778 A.2d 683 (2001).
Statements that simply say "the verdict of the jury was against the evidence" or
the like have been consistently rejected. ·Commonwealth v. Reeves, 2006 PA
Super 196, 907 A.2d 1, 2 (2006), appeal denied, 591 Pa. 712, 919 A.2d 956(2007), and cases cited therein. This alone would be justification for dismissing
the claim outright, but it also demonstrates that he cannot meet the other prongs
either; without demonstrating at least a possibility that the weight of the evidence
may have been insufficient to convict, he has also completely failed to
demonstrate that his counsel should have reasonably been aware that the claim
was meritorious and, therefore, had no reason not to pursue it, and that there is a
reasonable probability that a motion to dismiss based on a lack of weight would
most likely have been granted or a denial would have been overruled.
Pa.R.A.P. 1925(a) Opinion, September 17, 2012, 1843 EDA 2012. To call the witness not
credible without even mentioning any of her testimony is the epitome of specious argument.
31
Finally, appellant argues that she is entitled to a new trial as the verdict was
against the weight of the evidence. We note initially that our scope of review for
such a claim is very narrow. Commonwealth v. Hamilton, 376 Pa.Super. 404, 414,
546 A.2d 90, 95 (1988), allocatur denied, 521 Pa. 629, 558 A.2d 531 (1989). The
determination of whether to grant a new trial because the verdict is against the
weight of the evidence rests within the discretion of the trial court, and we will
not disturb that decision absent abuse of discretion. Commonwealth v. Pronkoskie,
498 Pa. 245, 251, 445 A.2d 1203, 1206 (1982),· Commonwealth v. Hunter, 381
Pa.Super. 606, 618, 554 A.2d 550, 555 (1989). Where issues of credibility and
weight of the evidence are concerned, it is not the function of the appellate court
to substitute its judgment based on a cold record for that of the trial court.
Commonwealth v. Paquette, 451 Pa. 250, 257, 301 A.2d 837, 841 (1973);
Commonwealth v. Hamilton, supra, 376 Pa.Super. at 414, 546 A.2d at 95-96. The
weight to be accorded conflicting evidence is exclusively for the fact finder,
whose findings will not be disturbed on appeal if they are supported by the record.
Commonwealth v. Zapata, 447 Pa. 322, 290 A.2d 114 (1972). A claim that the
evidence presented at trial was contradictory and unable to support the verdict
requires the grant of a new trial only when the verdict is so contrary to the
evidence as to shock one's sense of justice. Id.,· Commonwealth v. Hunter, supra;Commonwealth v. Saksek, 361 Pa.Super. 173, 522 A,2d 70 (1987). See also
Commonwealth v. Wallace, 522 Pa. 297, 315, 561 A.2d 719, 728 (1989) (citing
Commonwealth v. Nelson, .514 Pa. 262, 271, n. 3, 523 A.2d 728, 733, n. 3 (1987),
. cert. denied, 484 US 928, 108 S.Ct. 293, 98 L.Ed.2d 253 (1987) (under ordinary
circumstances, an appellate tribunal should not entertain a challenge to the weight
of the evidence since their examination is confined to the "cold record")). See also
Commonwealth v. Jenkins, 396 Pa.Super. 395, 578 A.2d 960 (1990) and
Commonwealth v. Mclean, 396 Pa.Super. 23, 578 A.2d 4 (1990) (explaining that
a challenge to the weight of the evidence is reviewable by the Superior Court).
We have carefully scrutinized the entire record and have found no basis on which
to grant relief to appellant on this claim.
Commonwealth v. Rochon, 398 Pa. Super. 494, 581 A.2d 239, 244-45 (1990). Not only did
counsel not point to any conflicting evidence, which is understandable since there wasn't any,
counsel didn't discuss any evidence at all.
6. Newly Discovered Evidence of Doves Firing and Charges
Counsel stated that he has found "after-discovered evidence" of the fact that one of the
officers who participated inthis case had been subsequently fired and charged with misconduct
involving unspecified "tampering with evidence/witnesses involving investigations led by" him,
and that, therefore, he must have done the same things and gotten his fellow officers to do so also
32
in the investigation, arrest and conviction of the defendant. Counsel cited absolutely nothing to
support these outrageous accusations. He didn't refer to any evidence of the officer's firing or
being charged with anything, nor did he point to any evidence that any tampering occurred in his
case. His allegation that the officer was a "key" and "critical" witness against the defendant is
simply untrue. Counsel also neglected to mention to what specific facts Detective Dove testified
at trial. He was not one of the officers who apprehended this defendant after the assault, and
counsel did not state that he was one of the witnesses who identified him at trial. It's not this
court's function to search the record to ascertain that information for him, and without his having
cited to any facts of record to demonstrate what evidence the officer did produce, the court could
safely assume there was none implicating the defendant. As the Commonwealth noted in its
motion to dismiss, its case against this defendant certainly did not rise and fall on Detective
Dove's participation in the investigation and trial. As it also noted," ... Detective Dove was
terminated from employment in November 2013, and pied guilty in April of 20 I 7 for misconduct
that occurred in a single unrelated case at the earliest five years after he testified at defendant's
2005 trial" and those facts could, therefore, by no means have affected the verdict.
The principles governing claims of after discovered evidence, or better phrased as
previously unavailable newly discovered facts, have been thoroughly set forth.
As indicated supra, Appellant's sole contention on appeal is that he is entitled
to relief under 42 Pa. CS.A. § 9543(a)(2)(vi) on the basis of exculpatory after-
discovered evidence. To be entitled to relief under the PCRA on this basis, the
petitioner must plead and prove by a preponderance of the evidence "[t]he
unavailability at the time of trial of exculpatory evidence that has subsequently
become available and would have changed the outcome of the trial if it had been
introduced." 42 Pa.CS.A. § 9543(a)(2)(vi). As our Supreme Court has
summarized:
To obtain relief based on after-discovered evidence, [an]
appellant must demonstrate that the evidence: ( 1) could not have
been obtained prior to the conclusion of the trial by the exercise of
reasonable diligence; (2) is not merely corroborative or
33
cumulative; (3) will not be used solely to impeach the credibility of
a witness; and ( 4) would likely result in a different verdict if a new
trial were granted.
Commonwealth v. Pagan, 597 Pa. 69, 106, 950 A.2d 270, 292 (2008) (citations
omitted). "The test is conjunctive; the [appellant] 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)
(citation omitted). Further, when reviewing the decision to grant or deny a new
trial on the basis of after-discovered evidence, an appellate court is to determine
whether the PCRA court committed an abuse of discretion or error of law that
controlled the outcome of the case. Commonwealth v. Reese, 444 Pa.Super. 38,
663 A.2d 206 (1995).
After a careful review, we conclude Appellant's "new evidence" regarding the
filing of criminal charges against Detective Simon in an unrelated matter does not
meet the after-discovered evidence test since such evidence would be used solely
to impeach the credibility of Detective Simon and would not likely result in a
different verdict if a new trial were granted. See Pagan, supra. Specifically,
regarding the third prong, related to impeachment evidence, Appellant admits that
the primary purpose in presenting the evidence of Detective Simon's criminal
charges would be to impeach the detective's credibility and "observational
acumen." However, he further argues such evidence is relevant for "non-
impeachment purposes" since it calls into question the "chain of custody" and
"evidence handling procedures" regarding the confiscation of the handgun.
Appellant notes that Detective Simon did not request the handgun recovered from
Appellant's pants be tested for fingerprints, thus suggesting the handgun was
actually never in Appellant's possession. Inasmuch as Detective Simon testified
during Appellant's suppression hearing and trial that he removed the handgun
from Appellant's pants, Appellant's argument regarding the lack of fingerprinting
testing challenges Detective Simon's credibility. Thus, we conclude the sole
reason Appellant is seeking to introduce evidence regarding Detective Simon's
criminal charges is to impeach the testimony, which the detective gave during
Appellant's proceedings. Pagan, supra.
Regarding the fourth prong, related to whether the new evidence would result in
a different verdict if a new trial were granted, Appellant has failed to show any nexus
between his case and Detective Simon's alleged misconduct in an incident, which
occurred more than two years after Appellant's conviction. See Commonwealth v.
Soto, 983 A.2d 212 (Pa.Super.2009). Additionally, Appellant admits in his appellate
brief that, subsequent to the PCRA proceedings in this case, "Detective Simon was
found not guilty of all of the charges filed against him." Thus, Appellant's assertion
that Detective Simon committed misconduct in his case is pure conjecture and would
not compel a different jury verdict. See Soto, supra.
Commonwealth v. Foreman, 2012 PA Super 226, 55 A.3d 532, 536-38 (2012) (footnote and
34
citations to record omitted). Like Foreman, although defense counsel here did not mention the
word credibility, his specification of for what this "evidence" of Dove's alleged improprieties
would be used is precisely that. The claim fails for the same reasons Foreman's did: Counsel did
not say when this evidence was discovered, and thus the court cannot discern (l) whether it
could not have been obtained prior to the conclusion of the defendant's trial by the exercise of
reasonable diligence; (3) it would only be used solely to impeach the credibility of the Officer;
and, given all of the incriminating evidence, ( 4) would most decidedly not have resulted in a
different verdict if a new trial were granted. The key to the after discovered evidence rules are
that the evidence, if it had been produced at trial would have altered the outcome of the
case. This evidence could not have been used at trial since it did not exist; the rule calls for the
discovery of facts that did exist but were not ascertainable by the defendant at the time. Facts
that occur long after the trial are not applicable. This defendant is not the only one to attempt
this ploy with regard to Detective Dove.
[For his after discovered evidence claim,] Appellant relies on a March 3, 2014
newspaper article concerning Detective Ronald Dove, who investigated
appellant's case. According to the article, Detective Dove was fired from the
Philadelphia police force amid allegations that he helped his girlfriend, Erica
Sanchez, flee the city after she murdered her ex-boyfriend. The newspaper article,
in and of itself, is not "evidence." Furthermore, there is no allegation that
Detective Dove acted improperly in investigating appellant's case. As the PCRA
court observed, "the allegations against Detective Dove are confined to conduct
stemming from a personal matter and are not averments of widespread
corruption." Although appellant alleged that Detective Dove was "not providing
credible information," he failed to specify what misleading information Detective
Dove provided. Recently, this court addressed a similar issue relating to an after-
discovered evidence claim based on the allegations surrounding Detective Dove:
We acknowledge that in [Commonwealth v. Castro, 93 A.Jd 818,
821 (Pa. 2014)], our Supreme Court held that allegations in a
newspaper article "do not constitute evidence" and thus, were not
sufficient to support a motion for an evidentiary hearing or a new
trial. The Supreme Court specifically stated:
35
[a]llegations in the media, whether true or false, are
no more evidence than allegations in any other out-
of-court situation. Nothing in these allegations even
read in the broadest sense, can be described as
"evidence," and references to the officer being
under investigation for misconduct contains no
information regarding what evidence existed to
substantiate this averment. One cannot glean from
these bald allegations what evidence of misconduct
appellee intended to produce at the hearing.
Castro, [] 93 A.3d at 825. As "an evidentiary hearing is not meant
to function as a fishing expedition for any possible evidence that
may support some speculative claim," the Supreme Court
concluded that Castro "needed to do more than present an article
pointing to allegations that if true have the potential to aid his
cause; he needed to clearly articulate in his motion what evidence
he would present to meet the test." Id. at [] 828.
Commonwealth v. Brown, 134A.3d 1097, 1108-1109 (Pa.Super. 2016).
With respect to the allegations regarding Detective Dove,
Appellant solely relies on the newspaper article reporting on
Dove's possible misconduct and does not articulate what evidence
he would present at the evidentiary hearing on remand. In
accordance with Castro, the article concerning Detective Dove
does not constitute after-discovered evidence that entitles
Appellant to a new trial.
Id. at 1109.
In addition, as the Commonwealth points out, the only conceivable purpose in
presenting Detective Dove's alleged misconduct in an unrelated matter would be
to impeach his credibility. As such, appellant has not shown that he is entitled to
PCRA relief by presenting after-discovered evidence that will not be used solely
to impeach a witness's credibility. [Commonwealth v.] D'Amato, [579 Pa. 490,]
856 A.2d [806 (2004)] at 823.
Moreover, the evidence in appellant's case was overwhelming], which the Court
went on to describe in some detail].
Commonwealth v. Richburg, 158 A.3d 183, No. 3252 EDA 2015, 2016 WL 5210845, at *3-4
(Pa. Super. Ct. Sept. 20, 2016) (unpublished memorandum, citations to record omitted). The
36
court is fully aware that unpublished memoranda are not to be cited as legal precedent', but the
underlying.facts regarding Officer Dove and defendants' attempt to utilize them here as Richberg
and Brown tried to do renders both cases, for all practical purposes, virtually res judicata, and
the Brown opinion was published .
. . . One article from the Philadelphia Inquirer, dated November 21, 2013, reports
that Detective Dove was suspended from his duties pending an internal investigation
into allegations that Dove [was] covering up homicides connected to his girlfriend,
Erica Sanchez ....
***
With respect to the allegations regarding Detective Dove, Appellant solely
relies on the newspaper article reporting on Dove's possible misconduct and does
not articulate what evidence he would present at the evidentiary hearing on
remand. In accordance with Castro, the article concerning Detective Dove does
not constitute after-discovered evidence that entitles Appellant to a new trial.
Brown, supra, A.Jd at 1108. 1109. For all the court could tell, this defendant relied on the same
newspaper article upon which those defendants reliedas the sole basis for this claim. "Absent
identification of the actual testimony, physical evidence, documentation, or other type of
evidence to support the allegations of Officer Cujdik's wrongdoing, we cannot conclude appellee
had evidence to offer; to conclude otherwise would be speculation." Castro, supra, at 827. 6
IV. CONCLUSION
Counsel's final claim, contained only briefly in his prayer for relief, is that the PCRA
court erred in refusing to conduct a hearing. Other than Detective Dove's unfortunate behavior,
counsel did not allege the existence of any evidence or witnesses that he would have produced at
a hearing. The only factual evidence to which he referred was evidence that was already in the
record. If counsel wished to have been given an opportunity to develop any factual bases for his
5 "An unpublished memorandum decision shall not be relied upon or cited by a Court or a party in any other action
or proceeding, except that such a memorandum decision may be relied upon or cited (1) when it is relevant under the
doctrine of[inter alia] resjudicata ... Pa.St.Super.Ct. !OP§ 65.37.
6 Counsel ended the amended
petition by citing and briefly discussing other issues the defendant wished to raise and
concluded that they lacked merit. The court agreed with counsel's assessment and need not discuss those issues here.
37
other claims of counsel ineffectiveness with regard to the fee issue's effect on, and the
preparedness and capability of the performance of, assigned counsel, and whether Wesley would
have testified, it was incumbent upon him to identify that evidence, other than his own and his
client's unsupported assertions. The only real evidence he cited for the claims was already on
the record, and counsel only cited a mere paucity of that.
Appellant's first complaint concerning the PCRA proceedings is the denial of
an evidentiary hearing on issues ( of ineffective assistance for failing to object to
V [unconstitutionally obtained statements], VIII, IX [prosecutor's improper
closing], and XI ( unconstitutional death sentence, VIII being the failure to
properly cross examination one of the state's witnesses]. He claims each of these
issues involved a legitimate, material factual dispute requiring a hearing.
A PCRA court is only required to hold a hearing where the petition, or the
Commonwealth's answer, raises an issue of material fact. Pa.R.Crim.P. 909(B)(J)-
(2). When there are no disputed factual issues, an evidentiary hearing is not
required. Id; Commonwealth v. Morris, 546 Pa. 296, 684 A.2d 1037, 1042 (1996)
( citation omitted). If a PCRA petitioner's offer of proof is insufficient to establish a
prima facie case, or his allegations are refuted by the existing record, an evidentiary
hearing is unwarranted. See Commonwealth v. Hutchinson, 611 Pa. 280, 25 A.Jd
277, 320 (2011) (citation omitted); Commonwealth v. Walker, 613 Pa. 601, 36 A.3d
1, 17 (2011).
There was sufficient information in the record for the PCRA court to decide
issues V, VIII, IX, and XI without a hearing. There was no issue of material fact in
issue V because voluminous evidence of appellant's mental health was introduced
during hearings on other issues, and appellant's Sixth Amendment right to counsel
argument turned on a question of law. There was no issue of material fact in issue
VIII because it was frivolous as a matter of law. There was no issue of material fact
in issue IX because it pertains to closing statement comments by the prosecutor
already captured in the record. There was no issue of material fact in issue XI
because the jury statements proffered as the only evidence in support of the claim
were inadmissible as a matter of law. Thus, the PCRA court did not err by refusing
a hearing on these issues.
Commonwealth v. Eichinger, 631 Pa. 138, 108 A.3d 821, 849-50 (2014).
With regard to Appellant's claim that the court erred in denying him an
evidentiary hearing on his claim of ineffective assistance of counsel, it has been
held that:
The right to an evidentiary hearing on a post-conviction petition
is not absolute. A PCRA court may decline to hold a hearing if the
38
petitioner's claim is patently frivolous and is without a trace of
support in either the record or from other evidence. A reviewing
court on appeal must examine each of the issues raised in the
PCRA petition in light of the record in order to determine whether
the PCRA court erred in concluding that there were no genuine
issues of material fact and denying relief without an evidentiary
hearing.
Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa.Super.2001) (internal
citations omitted). "The controlling factor in determining whether a petition may
be dismissed without a hearing is the status of the substantive assertions in the
petition." Commonwealth v. Weddington, 514 Pa. 46, 50, 522 A.2d 1050, 1052
(1987).
As discussed above, Appellant's substantive claim deals with testimony
evidencing his presence in Victim's vehicle. A review of the record reveals that
there exist no genuine issues of material fact concerning this issue; in fact,
Appellant acknowledges his presence therein. As such, the trial court did not err
in dismissing Appellant's PCRA petition without an evidentiary hearing.
Commonwealth v. Payne, 2002 PA Super 62, 794 A. 2d 902, 906-07 (2002) ( citation to record
omitted), appeal denied, 570 Pa. 685, 808 A.2d 571 (2002). Counsel here cited to precisely three
matters ofrecord: private counsel's withdrawal, trial counsel's assignment and employment, and
Norton's testimony. The only non-record fact alleged was Detective's Dove's subsequent
conduct, which was not a "fact" until five years after the defendant's trial. Every other factual
assertion he made was pure baseless speculation. Wherefore, the court's dismissal of the
defendant's PCRA petition without a hearing should be affirmed.
BY THE COURT:
39
IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
TRIAL DIVISION - CRIMINAL SECTION
COMMONWEALTH OF PENNSYLVANIA CP-51-CR-0203312-2005
CP-51-CR-0204542-2005
v. CP-51-CR-0204551-2005
RONALD ALSTON
SUPERIOR COURT
NO. 363 EDA 2018
PROOF OF SERVICE
I hereby certify that I am this day serving the forgoing Court Order upon the persons, and
in the manner indicated below, which service satisfies the requirements of Pa.R.Crim.P. 114.
Defendant: Ronald Alston
SCI Fayette
PO Box 9999
La Belle, PA 15450
Type of Service: ( ) Personal () First Class Mail Other, please specify: CERTIFIED
Counsel: Peter Alan Levin
1927 Hamilton Street
Philadelphia, PA 19130
Type of Service: () Personal (X) First Class Mail Other, please specify: _
Philadelphia District Attorney: Hugh J. Burns
District Attorney's Office
Three South Penn Square
Philadelphia PA 19107-3499
Type of Service: ( ) Personal ( X) First Class Mail Other, please specify: _
Additional Counsel/Party: Natasha Lowe, Esq.
Supervisor, PCRA/Appeal Unity
#206 CJC
Philadelphia, PA 19107
Type of Service: {) Personal () First Class Mail Other, please specify: Inter-Office
Dated: April 16, 2018
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