Commonwealth v. Johnson

OPINION BY

MUNDY, J.:

Appellant, Kevin Johnson, appeals from the July 15, 2009 order dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

The PCRA court summarized the relevant facts of this case as follows.

[On October 8, 1986, the victim], Lyndon “Cowboy” Morris, was selling cocaine from a second-floor bedroom that he rented in a home in southwest Philadelphia. He was assisted by one James Smith who would answer the door at the residence, collect money from the prospective purchasers, give the money to [Appellant] who was positioned in the second-floor bedroom, and then deliver the cocaine to the buyers who were waiting on the first floor.

The owner of the residence, Opal Nickson, arrived home that night and joined Angelo Smith, Elijah Bennett, and James Smith in another second-floor bedroom where they were all smoking marijuana and cocaine. In response to a knock on the door, James Smith went downstairs and encountered [Appellant] who was armed with a revolver and his accomplice who was carrying a sawed-off shotgun. [Appellant] demanded to see [Morris], and when the three of them reached the second floor, [Appellant] ordered Nickson, Angelo Smith, and Bennett to lie on the floor. Both Nickson and Bennett (along with the Smiths) identified [Appellant] at trial, and testified that they recognized him “from the neighborhood[.]”[ ]

With the accomplice standing by, [Appellant] banged on [Morris’] door. When he unlatched the door and saw the shotgun, he attempted to slam the door shut. [Morris] was unsuccessful in that effort, and the accomplice fired through the open door and struck [Morris] in the lower abdomen. [Appellant] then rushed into the bedroom, fired his gun a number of times, and shot [Morris] in the chest while he was lying on the ground. After scooping up [Morris’] cash and drugs, [Appellant] and his accomplice ran out of the house and fled.

[A seven-day jury trial began on January 27, 1988. During the trial Stephen Gallagher, Esquire, (Attorney Gallagher), Appellant’s] trial counsel[,] called a number of alibi witnesses, Douglas Yancy, James Lawrence, and Wanda Johnson, in his effort to establish that [Appellant] was selling clothes from the back of a car at various locations in West Philadelphia. His mother and a family member gave testimony that contradicted the Commonwealth[’s] witnesses who had described what he was wearing and the vehicle in which he was riding. [Appellant] also testified at trial on his own behalf. He denied being involved in the shooting or robbery of [Morris], and recounted his actions that evening as he traveled around the neighborhood with a friend while attempting to sell clothes.

PCRA Court Opinion, 7/7/10, at 5-6.

On February 4, 1988, the jury convicted Appellant of first-degree murder. The following day, the trial judge concluded that the Commonwealth had failed to establish the aggravating circumstance of endangerment of another person, and held that it would be illegal for the jury to consider the death penalty. On July 1,1988, Appellant was sentenced to life imprisonment.

Attorney Gallagher filed a timely notice of appeal. The trial court ordered Attorney Gallagher to file a concise statement of matters complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Attorney Gallagher failed to file a Rule 1925(b) statement and brief with this Court. Due to these failures, this Court dismissed the appeal. On March 11, 1991, Appellant filed a petition under the PCRA requesting restoration of his direct appeal rights nunc pro tunc. The Commonwealth did not object. On March 25, 1991, the trial court granted Appellant nunc pro tunc relief, and appointed Jaime Smarro, Esquire (Attorney Smarro) to represent him on direct appeal. On March 4, 1992, this Court affirmed the judgment of sentence. Commonwealth v. Johnson, 610 A.2d 65 (Pa.Super.1992) (unpublished memorandum). Our Supreme Court denied Appellant’s petition for allo-catur on September 30, 1992.

Thereafter, Appellant filed a timely pro se PCRA petition on December 23, 1996.¹ Counsel was appointed to represent Appellant, but failed to file an amended PCRA petition. The trial court subsequently appointed another attorney, who filed an amended petition on June 12, 2002 averring various claims of ineffective assistance of counsel. Appellant’s PCRA petition was dismissed without a hearing on January 15, 2003. On January 31, 2005, this Court reversed the PCRA court’s order and remanded with instructions to conduct an evidentiary hearing on the issue of whether Attorney Gallagher was ineffective for failing to consult with Appellant prior to trial. Commonwealth v. Johnson, 873 A.2d 768 (Pa.Super.2005) (unpublished memorandum).

On remand, the PCRA court conducted two hearings on March 6, 2006 and April 17, 2006.² The matter was transferred to the Honorable Peter Rogers because the original PCRA judge was no longer sitting on the trial bench.³ On June 17, 2009, pursuant to Pennsylvania Rule of Criminal Procedure 907, the PCRA court advised Appellant that his petition was going to be denied because the PCRA court found that the issues he raised lacked merit. The PCRA court formally entered an order denying relief on July 15, 2009.

Appellant filed a timely notice of appeal on July 23, 2009.⁴ On June 27, 2011, a divided panel of this Court reversed the PCRA court’s order, vacated the judgment of sentence, and remanded the matter for a new trial. Commonwealth v. Johnson, 2187 EDA 2009 (Pa.Super.2011) (unpublished memorandum). The panel majority found that Attorney Gallagher had rendered ineffective assistance of counsel under Commonwealth v. Brooks, 576 Pa. 332, 839 A.2d 245 (Pa.2003). The dissent argued Brooks did not control the outcome of the case, Attorney Gallagher provided Appellant with effective representation, and Appellant could not show that he was prejudiced under Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (Pa.1987). On July 11, 2011, the Commonwealth filed a petition for reargument en banc. On August 29, 2011, this Court granted the Commonwealth’s motion for reargument and withdrew the June 27, 2011 panel memorandum.

In his substituted brief on reargument, Appellant raises the following issues for our review.

1. Should reargument en banc be dismissed as improvidently granted?

2. Due to court error, prosecutorial misconduct and ineffective assistance of trial and appellate counsel, was Appellant denied a fair trial?

A. Is Appellant entitled to relief under the authority of Commonwealth v. Brooks [576 Pa. 332], 839 A.2d 245 (Pa.2003) and Strickland v. Washington, 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674] (1984) where counsel failed to ever meaningfully consult with his client prior to trial, and was appellate counsel ineffective for failing to raise this claim?

B. Did Appellant plead and prove that counsel’s deficient performance, prosecutorial misconduct, and court error, and resulting prejudice, undermined the reliability of Appellant’s conviction, entitling him to a new trial, and did the PCRA court abuse its discretion in denying, as previously agreed to, a hearing on these issues?

i. Was Appellant denied effective assistance of counsel where trial counsel failed to investigate and present good character testimony relating to Appellant’s reputation as peaceful and non-violent, and appellate counsel failed to raise this issue?

ii. Was Appellant denied the effective assistance of counsel where trial counsel failed to present known alibi evidence, and appellate counsel failed to raise this issue?

iii. Was Appellant denied his rights to due process of law and confrontation by the improper introduction of hearsay statements, and were prior counsel ineffective for failing to properly preserve this issue at trial and on appeal?

iv. Was Appellant denied his constitutional rights to due process and effective assistance of counsel due to police misconduct and were prior counsel ineffective for failing to expose, and cross-examine, and pursue this issue on appeal?

v. Was Appellant denied his constitutional rights to due process and the effective assistance of counsel where trial counsel failed to argue that another suspect was culpable, and appellant counsel failed to raise this issue?

vi. Was Appellant denied his constitutional right to due process because a key witness’s testimony was fabricated due to coercion by the police and were prior counsel ineffective for failing to expose and cross-examine on, this misconduct and to pursue this claim on appeal?

Appellant’s Brief at 4.

Prior to addressing Appellant’s substantive claims, we must first address Appellant’s procedural argument. Appellant avers that the Commonwealth’s petition for reargument en banc was improvidently granted, and we should reinstate the June 27, 2011 panel decision. Id. at 14. When this Court grants rehearing en banc it may do so for the following reasons. See Commonwealth v. Morris, 958 A.2d 569, 580 n. 2 (Pa.Super.2008), appeal denied, 605 Pa. 711, 991 A.2d 311 (2010); accord Commonwealth v. Jacobs, 900 A.2d 368, 377 n. 9 (Pa.Super.2006), appeal denied, 591 Pa. 681, 917 A.2d 313 (2007).

1. Where it appears that a decision of a panel of the court may be inconsistent with a decision of a different panel of the court;

2. Where it appears that a panel may-have overlooked relevant precedent, statute, or rule of court;

3. Where it appears that a panel may have overlooked or misapprehended one or more material facts of record;

4. Where a panel relied upon relevant legal authority which has been reversed, modified, overruled, discredited or materially altered during the pendency of the appeal sub judice; and

5. Where the issues have potential for a significant impact upon developing law or public policy.

Superior Court Internal Operating Procedures § 65.38(B). A majority of this Court’s 15 commissioned judges must determine that at least one of these criteria has been met before a case may be heard en banc. Id. § 65.38(C). Before deciding the merits of an en banc case, the en banc panel may decide that reargument was improvidently granted. Id. § 65.41(C); see e.g. Commonwealth v. Doria, 393 Pa.Super. 363, 574 A.2d 653, 657 (1990) (en banc) (deciding the original panel decision contained no error in its findings).

In the instant matter, Appellant avers that because five judges of this Court, at some point in time, have agreed with him on some issue, that would constitute an en banc majority if all five of them were on this en banc panel.⁵ Appellant’s Brief at 14. Appellant therefore concludes that the panel memorandum should be reinstated because to do otherwise would allow the resolution of this case to “rest on the vagaries of the selection process.” Id. Appellant fails to point this Court to any authority to support his position. As the Commonwealth points out, Appellant’s premise that five judges of this Court have previously found Attorney Gallagher to be ineffective is not accurate. The 2005 panel decision merely found that Appellant was entitled to an evidentiary hearing because the panel found his claim that Attorney Gallagher never met with him prior to trial presented “a genuine issue of material fact” requiring an evidentiary hearing. Commonwealth v. Johnson, 873 A.2d 768, 11 (Pa.Super.2005) (unpublished memorandum). Simply put, the 2005 panel decision did not decide that Attorney Gallagher was ineffective as a matter of law, but rather held that Appellant was entitled to a hearing as a chance to prove that allegation. Furthermore, one judge on the 2005 panel concurred only in the result. Id. Even if Appellant’s assertions as to the previous panel decisions were true, this Court has never resolved a case based on consideration of the votes of judges from previous panels, who are not sitting on the en banc panel. We decline Appellant’s invitation to begin using such a method of case resolution now. We therefore conclude en banc review was properly granted, and proceed to Appellant’s substantive arguments.

Turning to Appellant’s substantive arguments, we note our well-settled standard of review of a denial of post-conviction relief. “Our review of a PCRA court’s decision is limited to examining whether the PCRA court’s findings of fact are supported by the record, and whether its conclusions of law are free from legal error.” Commonwealth v. Koehler, — Pa. -, 36 A.3d 121, 131 (2012) (citation omitted). “[Our] scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the PCRA court level.” Id. “The PCRA court’s credibility determinations, when supported by the record, are binding on this Court.” Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d 244, 259 (2011) (citation omitted). “However, this Court applies a de novo standard of review to the PCRA court’s legal conclusions.” Id.

Appellant avers that Attorney Gallagher rendered ineffective assistance, and he is therefore entitled to a new trial under Commonwealth v. Brooks, 576 Pa. 332, 839 A.2d 245 (2003) and United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Appellant’s Brief at 15. “It is well-established that counsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel’s performance was deficient and that such deficiency prejudiced him.” Koehler, supra,citing Strickland v. Washington, 466 U.S. 668, 687-691, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In adopting Strickland, our Supreme Court articulated a three-part test to determine whether an appellant has received ineffective assistance of counsel. “Appellant must demonstrate that: (1) the underlying legal issue has arguable merit; (2) counsel’s actions lacked an objective reasonable basis; and (3) Appellant was prejudiced by counsel’s act or omission.” Koehler, supra citing Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 (1987).

Appellant alleges multiple errors by both Attorney Gallagher and appellate counsel. Appellant first avers that Attorney Gallagher was ineffective by only meeting with him on the night before his trial began. Appellant’s Brief at 16. Appellant claims he should therefore be entitled to relief pursuant to our Supreme Court’s decision in Brooks. Appellant’s Brief at 16.

In Brooks, the appellant was convicted of first-degree murder and sentenced to death following a trial where he elected to proceed pro se. Brooks, supra at 247. At the beginning of jury selection, the appellant informed the trial court that he wished to represent himself because his attorney had not met with him at any time up to that point. Id. at 247 n. 3. His attorney testified that he could only recall one telephone conversation with his client prior to trial, and that lasted no more than half an hour. Id. at 249. His attorney also testified that he did not meet with Brooks while he was in prison because he was not “looking forward to spending any time alone with Mr. Brooks.” Id. In finding that Brooks’ attorney had no reasonable basis for not meeting with his client, the Court concluded the following.

General fear of a potential conflict in the lawyer-client relationship and a busy schedule simply cannot serve as a reasonable basis for failing to have personal contact with a client prior to that client’s trial on capital charges. To the contrary, failure to do so is ‘simply an abdication’ of the most basic expectations of defense counsel in a capital case.

Id. at 250. The Court held that “the very nature of a capital case ... clearly necessitates at least one in-person meeting between a lawyer and his client before trial begins.” Id. at 249. Moreover, our Supreme Court noted “no lawyer, no matter how talented and efficient, can possibly forge a meaningful relationship with his client and obtain adequate information to defend that client against first-degree murder charges in a single thirty-minute telephone conversation.” Id.

Appellant avers that because Attorney Gallagher failed to meet with him face-to-face until the eve of his trial, he is entitled to relief under Brooks. We disagree. Our Supreme Court emphasized in Brooks that Brooks’ attorney failed to meet with his client “at all.” Id. at 248. In this case, Attorney Gallagher represented Appellant at his preliminary hearing and criminal arraignment, conducted a face-to-face meeting at his preliminary hearing, conducted another face-to-face meeting at the prison with Appellant prior to trial, and performed at least one telephone consultation. PCRA Court Opinion, 7/7/10, at 11-12, citing N.T., 3/6/06, at 48-49; N.T., 3/6/06, at 73-74. While we acknowledge that more contact may have been advisable, we disagree with Appellant that the length and frequency of the consultations alone can support a finding of ineffectiveness. We further decline to read Brooks so rigidly that we are precluded from evaluating the substantive impact of the consultations Attorney Gallagher did perform. As the PCRA Court noted, Attorney Gallagher’s contact with Appellant allowed him to present a cogent trial strategy.

As limited as [Attorney] Gallagher may have arguably been with his pre-trial preparation, ... he called five witnesses, put on a vigorous defense, and was able to spare [Appellant] the death penaltyf.]

The record in this case establishes unequivocally that [Attorney Gallagher] retained an investigator who testified at the evidentiary hearings that he had interviewed numerous witnesses prior to trial[,] presumably at [Attorney] Gallagher’s request[,] and that five of those witnesses end[ed] up testifying at trial for the defense. Even the alleged alibi witness, Ronald Crawford, who did not appear to testify at trial, was the subject of extensive efforts on the part of the investigator to secure him as a defense witness. In addition, the record clearly establishes that [Attorney Gallagher] subjected all of the Commonwealth [’s] witnesses to meaningful and effective scrutiny and cross-examination.

PCRA Court Opinion, 7/7/10, at 13-14. Appellant appears to concede that Attorney Gallagher did all of the above-mentioned things, but nevertheless insists that he is entitled to relief because he did not conduct a substantive meeting before trial. Appellant’s Brief at 16. In our view, it is hard to fathom how, despite the time limitations of Attorney Gallagher’s meetings, these meetings were not substantive. As mentioned above, Attorney Gallagher managed to secure five witnesses for Appellant’s trial. In addition, Attorney Gallagher hired a private investigator in an effort to track down Appellant’s alibi witness, Ronald Crawford.⁶ The only way Attorney Gallagher and the private investigator could have known to look for these witnesses was by information obtained from Appellant. Based on the record in this ease, we find that “at least one in-person meeting” did occur between Attorney Gallagher and Appellant before trial. See Brooks, supra at 249. We also conclude, based on the work Attorney Gallagher performed, that he did “obtain adequate information to defend [Appellant] against first-degree murder charges[.]” Id. We therefore conclude that Appellant is not entitled to relief under Brooks.

Alternatively, Appellant argues that he is entitled to relief under the United States Supreme Court’s decision in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), which was decided the same day as Strickland. In Cronic, the Court reiterated that in the vast majority of ineffective assistance cases, an appellant must allege “some ef-feet of [the] challenged conduct on the reliability of the trial process[.]” Cronic, supra at 658, 104 S.Ct. 2039. However, the Court identified three situations where both ineffective assistance and prejudice are presumed and automatically warrant relief because they “are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” Id. The first is a “complete denial of counsel.” Id. at 659, 104 S.Ct. 2039. The second is when “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” Id. The third is when there is a breakdown in the system to the point that “the likelihood that counsel could have performed as an effective adversary was so remote as to have made the trial inherently unfair.” Id. at 660-661, 104 S.Ct. 2039. Our Supreme Court “has employed a Cronic-style presumption of prejudice where counsel’s constitutional error has caused a total failure in the relevant proceeding.... Cronic is limited to situations where counsel’s failure is complete, i.e., where counsel has entirely failed to function as the client’s advocate.” Commonwealth v. Martin, 607 Pa. 165, 5 A.3d 177, 191 (2010) (citation omitted), cert. denied, Martin v. Pennsylvania, — U.S. -, 131 S.Ct. 2960, 180 L.Ed.2d 250 (2011).

Turning to the case sub judice, we cannot conclude that there was a “complete denial of counsel.” As noted above, Attorney Gallagher met face-to-face with Appellant at his preliminary hearing, again at the prison before trial and performed at least one telephone consultation. PCRA Court Opinion, 7/7/10, at 11-12, citing N.T., 3/6/06, at 48-49; N.T., 3/6/06, at 73-74. Also, as the PCRA court noted, Attorney Gallagher “called five witnesses, put on a vigorous defense, and was able to spare [Appellant] the death penalty[.]” PCRA Court Opinion, 7/7/10, at 13.

We also do not find that Attorney Gallagher failed to subject the Commonwealth’s case to “meaningful adversarial testing.” In addition to the witnesses Attorney Gallagher called, he made substantial efforts to locate additional witnesses for the defense. Private investigator Ronald Mclnerney (Investigator Mclnerney) testified that Attorney Gallagher provided him with a list of twenty names of potential defense witnesses, including Appellant’s alleged alibi witness, Ronald Crawford. N.T., 2/3/88, at 778. However, Investigator Mclnerney was unable to locate Crawford to serve him with a subpoena to appear at trial. Id. at 779. The record also unequivocally indicates that Attorney Gallagher subjected the Commonwealth’s witnesses to cross-examination. N.T., 1/27/88, at 108-172; 1/28/88, at 217-279, 300-307, 321-326, 328; 1/29/88, at 395-408, 412-415, 424^29, 431, 456-459, 471-503; 2/1/88, at 573-582, 586-587; 2/2/88, at 600. Under this record, we cannot say that Attorney Gallagher failed to subject the Commonwealth’s case to meaningful scrutiny and cross-examination.

Finally, Appellant has not alleged any additional factors giving rise to a breakdown in the system, which would “justify a presumption of ineffectiveness.” Cronic, supra at 662, 104 S.Ct. 2039. Since we have already concluded that Appellant’s argument for relief under Brooks fails, Appellant’s claim that Attorney Gallagher’s limited contact caused a breakdown in the system that “made the trial inherently unfair” must also fail. Id. at 661, 104 S.Ct. 2039. Accordingly, Appellant is not entitled to relief under Cronic.⁷

Prior to addressing Appellant’s remaining claims, we must first determine whether Appellant has complied with Pennsylvania Rule of Appellate Procedure 1925(b). Rule 1925(b) by its own terms requires that statements “identify each ruling or error that the appellant intends to challenge with sufficient detail to identify all pertinent issues for the judge.” Pa.R.A.P.1925(b)(4)(ii). The Rule also requires that “[e]ach error identified in the Statement will be deemed to include every subsidiary issue contained therein which was raised in the trial court....” Id. at (b)(4)(v). Finally, any issues not raised in accordance with Rule 1925(b)(4) will be deemed waived. Id. at (b)(4)(vii). Our Supreme Court has recently held that Rule 1925(b) is a bright-line rule.

Our jurisprudence is clear and well-settled, and firmly establishes that: Rule 1925(b) sets out a simple bright-line rule, which obligates an appellant to file and serve a Rule 1925(b) statement, when so ordered; any issues not raised in a Rule 1925(b) statement will be deemed waived; the courts lack the authority to countenance deviations from the Rule’s terms; the Rule’s provisions are not subject to ad hoc exceptions or selective enforcement; appellants and their counsel are responsible for complying with the Rule’s requirements; Rule 1925 violations may be raised by the appellate court sua sponte, and the Rule applies notwithstanding an appellee’s request not to enforce it; and, if Rule 1925 is not clear as to what is required of an appellant, on-the-record actions taken by the appellant aimed at compliance may satisfy the Rule. We yet again repeat the principle first stated in [Commonwealth v.] Lord [553 Pa. 415, 719 A.2d 306 (1998) ] that must be applied here: “[I]n order to preserve their claims for appellate review, [ajppellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925. Any issues not raised in a Pa.R.A.P. 1925(b) statement will be deemed waived.” [Id.] at 309.

Commonwealth v. Hill, 609 Pa. 410, 16 A.3d 484, 494 (2011) (footnote omitted).

Herein, Appellant’s Rule 1925(b) statement in this appeal states that “[t]he trial court erred in failing to find that [Appellant] is entitled to relief under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)[ ](requiring proof of prejudice).” However, Appellant’s Rule 1925(b) statement nowhere specifies what the deficiencies are for the purposes of this appeal. The Commonwealth argues that for this reason, this Court should deem the rest of Appellant’s issues waived. Commonwealth’s Brief at 32-33. See also Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa.Super.2011) (stating “the Rule 1925(b) statement must be ‘specific enough for the trial court to identify and address the issue [an appellant] wishe[s] to raise on appeal[ ]’ ”) (citation omitted), appeal denied, — Pa. -, 32 A.3d 1275 (2011); Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa.Super.2006) (stating “[w]hen a court has to guess what issues an appellant is appealing, that is not enough for meaningful review[]”), appeal denied, 591 Pa. 712, 919 A.2d 956 (2007).

Appellant counters that Rule 1925(b) “does not require the level of specificity the Commonwealth suggests.” Appellant’s Brief at 34 n. 17. However, it is telling that in its Rule 1925(a) opinion, the PCRA court stated that “[d]espite the seemingly numerous arguments that [Appellant] poses in this appeal, it is essentially one issue that is articulated in a number of variations.” PCRA Court Opinion, 7/7/10, at 7. The PCRA court surmised from Appellant’s vague Rule 1925(b) statement that Appellant was only raising the consultation issue. Id. Appellant further argues that “Appellant proffered and was at all times prepared to prove actual prejudice, and pled several examples of how counsel’s failure to consult prejudiced him beyond that required under Brooks.” Id. While this may be true, our Supreme Court has adopted a bright-line rule that a failure to specify those examples in a Rule 1925(b) statement results in waiver. Hill, supra. We are powerless to grant Appellant an ad hoc exception in this case. Id. Accordingly, we agree with the Commonwealth that Appellant has waived his additional issues due to his failure to specify them in his Rule 1925(b) statement.

Since we conclude that all of Appellant’s issues are either waived or devoid of merit, we affirm the PCRA court’s July 15, 2009 order denying relief.

Order affirmed.

Judge WECHT files a concurring opinion.

Judge BOWES concurs in the result of the majority and joins Judge WECHT’s concurring opinion.

1 . Although four years passed between Appellant’s judgment of sentence becoming final and his first PCRA petition, his petition was nevertheless timely. The 1995 amendments to the PCRA put into place the current one-year time bar. The 1995 amendments also granted prisoners whose judgment of sentence had become final more than one year before the implementation of the time-bar, one year from the effective date of the amendments to file their first PCRA petition. Act of November 17, 1995, P.L. 1118, No. 32 (Spec.Sess. No. 1), § 3(1). Under this provision "a petitioner's first PCRA petition, that would otherwise be considered untimely because it was filed more than one year after the judgment of sentence became final, would be deemed timely if it was filed by January 16, 1997.” Commonwealth v. Thomas, 718 A.2d 326, 329 (Pa.Super.1998) (en banc). Following this interpretation, since Appellant's petition was filed before January 16, 1997, it was properly considered timely filed.

2 .Attorney Gallagher passed away in 2005, before the evidentiary hearings. N.T., 3/6/06, at 71. While this makes Appellant’s burden of proving ineffective assistance more difficult, that burden is not reduced. See Commonwealth v. Steele, 599 Pa. 341, 961 A.2d 786, 820 (2008) (stating that although one attorney has died and another attorney's memory of events has diminished with the passage of time, an appellant’s burden "is not obviated or lessoned [sic][]”) (citation omitted).

3 . This case was originally assigned to the Honorable James J. Fitzgerald, III, who was then sitting on the Court of Common Pleas. In 2007, Justice Fitzgerald was appointed to our Supreme Court. He is currently serving as a senior judge specially assigned to this Court.

4 . Appellant and the trial court have timely complied with Pa.R.A.P. 1925.

5 . Appellant acknowledges that three of the five judges he identifies are no longer on this Court. Appellant’s Brief at 15.

6 . We note that the private investigator testified that he was unable to locate Crawford so that he could testify at the trial. An attorney is not ineffective for failing to put on a witness who was unavailable or unwilling to testify. Commonwealth v. Johnson, 27 A.3d 244, 247 (Pa.Super.2011) (citation omitted).

7 . Appellant also avers that Attorney Smarro was ineffective for not raising these two claims on direct appeal. Since we conclude that Appellant claims under Brooks or Cronic lack merit, we similarly hold that Attorney Smarro was not ineffective for not raising them on appeal. See Commonwealth v. Lawrence, 960 A.2d 473, 478 (Pa.Super.2008) (stating "[i]t is well established that appellate counsel cannot be deemed ineffective for failing to raise a meritless claim[]”), appeal denied, 602 Pa. 663, 980 A.2d 606 (2009).