Com. v. Muhammad, A.

J-S22030-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ASKIA MUHAMMAD :
:
Appellant : No. 1836 EDA 2021
Appeal from the PCRA Order Entered August 13, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002579-2013
BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.
MEMORANDUM BY McCAFFERY, J.: FILED MAY 9, 2023
Askia Muhammad (Appellant) appeals from the order entered in the
Philadelphia County Court of Common Pleas, dismissing his first, timely Post
Conviction Relief Act1 (PCRA) petition, following an evidentiary hearing.
Appellant seeks relief from the judgment of sentence of life imprisonment
without the possibility of parole, imposed on October 10, 2017, following his
jury convictions of first-degree murder, firearms not to be carried without a
license, and carrying firearms on public streets in Philadelphia.2 On appeal,
Appellant raises several claims regarding ineffective assistance of counsel. For
the reasons below, we affirm.
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1 42 Pa.C.S. §§ 9541-9546.
2 18 Pa.C.S. §§ 2502(a), 6106(a)(1), and 6108, respectively.
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We glean the underlying facts of this case from the PCRA court opinion:
[Appellant’s convictions] stem from the July 23, 2011
murder of Christine O'Neill. The murder occurred at
approximately 9:45 a.m. inside a white Mercury Sable parked in
the driveway behind 5001 Sheldon Street in Philadelphia,
Pennsylvania.
On July 23, 2011, the victim’s daughter, Malika O'Neill,
testified that she and her mother were sleeping in the same room.
Between 7:00 and 7:30 a.m., Malika was awakened by the sound
of her mother’s cell phone ringing with the name “Ski” appearing
on the caller-ID. After her mother took the call, she told Malika
“she was going to go meet Ski” and left their home approximately
25-30 minutes later. Malika spoke with her again between 8:00
and 8:30 a.m. when her mother called asking her to babysit her
brother “because she was still on her way to meet Ski.” This was
the last time Malika spoke to her mother.
Between 8:00 and 9:00 a.m., Willie Wilcher, a nearby
resident of the location where the shooting occurred, was driving
his cousin, James Simpson[,] to work through the alleyway
connecting Rubicam and Sheldon Streets. Wilcher and Simpson
saw a white car coming through the alley from the opposite
direction, so Wilcher pulled off to the side to create room for the
car to pass. As the car passed, both men looked inside the vehicle
and observed [Appellant] in the passenger’s seat with a female
driver, Ms. O’Neill.8 They observed [Appellant] and Ms. O’Neill for
approximately 15-30 seconds in close proximity, “about the
distance between [the witness] and the court reporter.” Wilcher
testified that [Appellant] was “motioning” to the woman who
looked “scared” and “frantic,” while Simpson testified that the two
appeared to be arguing and that [Appellant] appeared “hyper.”
They returned to the alleyway later that morning after hearing of
the shooting, at which point they noticed the same white Mercury
Sable they had seen earlier with the female-driver inside of it, who
was now dead.
_________________________
8Both Wilcher and Simpson identified [Appellant] as being
the man they saw in the car that morning, first in a photo
array and then again at trial.
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Martin Bennett was O’Neill’s boyfriend at the time of the
murder. Mr. Bennett testified that he called O’Neill from
Graterford State Prison at 9:10 a.m. and spoke with her until 9:25
a.m. A recording of this phone call revealed that she was still with
[Appellant] during this period. Less than 20 minutes later at 9:44
a.m., Elmire Price, who lived at 5001 Sheldon Street, called 911
reporting a black male who had shot a gun behind her home.9
Officer O’Brien arrived at the scene at 9:56 a.m. and discovered
a white Mercury Sable parked in the rear driveway containing the
victim, later identified as Ms. O’Neill, in the driver’s seat with a
gunshot wound to her head. Flash information was given to
investigating officers describing a black male in his twenties or
thirties fleeing from the scene wearing a striped shirt and black
pants.
_________________________
9Elmire Price was unable to testify both at the time of trial
and at the evidentiary hearing. Her daughter, Bronte
Williams, identified Price’s voice in the 911 call to lay a
foundation.
_________________________
Dr. Albert Chu testified at trial as an expert in forensic
pathology. Based on his review of the autopsy conducted by Dr.
Aaron Rosen, he concluded to a reasonable degree of medical
certainty that the cause of Ms. O’Neill’s death was a gunshot
wound to the head, and that the manner of death was homicide.
Notably, based on the “stippling” he saw in the photographs, he
also found that the gun was fired from a close-range between 6[
] inches — 2 feet of the deceased. The Crime Scene Unit
recovered a 40-caliber fired cartridge casing and projectile from
the vehicle, as well as two cell phones belonging to Ms. O’Neill and
Martin Bennett. An examination of the contents on O’Neill’s
cellular devices showed that she and [Appellant] had spoken
several times that month (156 calls and texts) to arrange various
drug transactions, including the morning of the murder.
On July 27th, 2011, Homicide detectives transported Martin
Bennett to the Homicide Unit from Graterford State Prison. There,
Mr. Bennett told the detectives that Ms. O’Neill was selling
marijuana for him using his cell phone while he was incarcerated.
He told detectives that [Appellant] went by the nickname “Ski,”
and that Ski was one of his regular customers. The Assistant
District Attorney played the recording of the phone call Mr.
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Bennett made to O’Neill the morning of her murder, and he
identified the man’s voice in same as belonging to [Appellant].
Mr. Bennett also identified [Appellant] in a photograph.
Detectives generated a photo array containing eight photographs,
including one of [Appellant]. They showed the array to five
witnesses: Willie Wilcher, James Simpson, Elmire Price, Maya
Kane, and Matthew Kane. Wilcher and Simpson each identified
[Appellant]’s photograph as the man they saw in the car that
morning.
On August 30, 2011 at 11:00 a.m[,] Detectives Byard and
Lucke brought [Appellant] into the Homicide Unit for
questioning.10 Detective Lucke read Petitioner his Miranda[3]
warnings two hours later at 1:00 p.m., and [Appellant] indicated
that he was willing to speak to the police without an attorney
present.11 During his interview which took place the following
afternoon,12 [Appellant] denied any involvement in the murder but
admitted that O’Neill had been his marijuana supplier for the
previous five months, having taken over Bennett’s “business”
while he was incarcerated.13 He also confirmed with the police
that he went by the nickname “Ski.” [Appellant] gave detectives
the phone number he used to communicate with the victim, which
was (267) 242-7260. He was not arrested at that time, and he
left the Homicide Unit after giving his statement.
_________________________
10 Sergeant Cooney testified that he received a phone call
from a male identifying himself as [Appellant]’s father who
was “inquiring as to his son in reference to this case.” Later
that same day, [Appellant] called and told Cooney that he
“was aware of the situation” and would be coming into the
Homicide Unit around 2:00 p.m. that day to discuss same
with detectives. [Appellant] never showed up. [Appellant]’s
father called again hours later, and Cooney informed him
that [Appellant] was a no-show.
11The warnings were read from a “warning card” which the
police routinely use.
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3 Miranda v. Arizona, 384 U.S. 436 (1966).
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12 Two new murders had occurred on 8/30/11 that required
investigation, so [Appellant]’s interview did not begin until
the following afternoon at 4:34 p.m. However, he
acknowledged at that time that he recalled being read his
Miranda rights on 8/30/11 and that he understood them.
He also indicated that he was provided bathroom breaks,
food, cigarettes, and coffee while he waited.
13During these five months, he purchased “about four to
five pounds [of marijuana] a day” from the victim.
_________________________
Using [Appellant]’s phone number, detectives obtained call
detail records from his cell phone provider (T-Mobile) and matched
same to extraction records retrieved from O’Neill’s cell phone.
Their analysis revealed that on July 23, 2011 between 6:38 a.m.
and 9:00 a.m., a total of eight connections (one SMS and seven
phone calls) were made between [Appellant] and O’Neill’s phones.
It also showed that [Appellant] called O’Neill two times after the
shooting using the “*67” feature which anonymized his caller-ID,
despite having never used this feature in the 156 calls and texts
he made to her the entire month of July leading up to the murder.
[Appellant]’s call detail records also revealed that, immediately
after the shooting,14 he made three outgoing calls to the
Germantown Cab Company at 9:45 a.m., 9:46 a.m., and 9:54
a.m.
_________________________
14Detectives ascertained the time of the shooting as 9:44
[a.m.] based on the initial 911 call, after which the victim’s
phone showed no signs of activity.
_________________________
Cell-Site-Historical-Information (“CSLI”) was obtained, the
analysis of which matched [Appellant]’s cell location to the area
of the shooting at the time of the murder, which was the only
time in the 25 days analyzed that his phone was used in that area.
FBI Special Agent Shute testified at trial as an expert in the field
of historic cell-site analysis, having reviewed the findings in the
report prepared by the FBI’s Cellular Analysis Survey Team
(“CAST’). Shute explained that the cell-site analysis put
[Appellant]’s phone in the area of Susquehanna & Broad Street at
approximately 9:20 a.m., with him moving further north by 9:27
a.m., eventually crossing over Roosevelt Boulevard at 9:30 a.m.
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Then, between 9:40 and 9:58 a.m. (the timeframe of the murder
and subsequent call to Germantown Cab Company), the analysis
placed [Appellant]’s phone in the area of Wisterwood Park and
5001 Sheldon Street where the crime occurred.
The jury heard testimony from just one defense witness,
Linwood Scott, who testified as an expert in the design of wireless
cell-site towers. While he testified on direct that it is impossible
to determine with 100 percent certainty whether a cell map
representation is correct, he acknowledged during cross-
examination that the ten pings between [Appellant]’s phone and
the cell tower closest to the crime scene between 9:34 a.m. and
9:47 a.m. “makes it a lot more probable that the handset would
be in the coverage area for that tower.”
PCRA Ct. Op., 12/14/21, at 4-8 (record citations omitted; emphasis in
original).
On June 8, 2012, Appellant was arrested and charged with the above-
mentioned crimes. His jury trial began on October 3, 2017, and seven days
later, the jury returned a verdict of guilty on all three counts. That same day,
the court sentenced him to the following: (1) life imprisonment without the
possibility of parole on the first-degree murder conviction; (2) a consecutive
term of three and one-half to seven years’ incarceration for the firearms not
to be carried without a license offense; and (3) a consecutive term of two and
one-half to five years for the carrying a firearm on public streets conviction.
Appellant did not file a post-sentence motion, but did file a timely direct
appeal, which was docketed in this Court as Docket No. 3757 EDA 2017.
However, on June 7, 2018, counsel for Appellant moved to dismiss the direct
appeal, with Appellant’s consent. Subsequently, this Court granted the
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motion, and the appeal was withdrawn. See Commonwealth v.
Muhammad, 3757 EDA 2017 (Pa. Super. June 25, 2018) (order).
On February 28, 2019, Appellant filed a timely, pro se PCRA petition.
Counsel then filed an amended PCRA petition on July 30, 2019. In the
amended petition, Appellant alleged trial counsel was ineffective (1) for failing
to call three witnesses (Maya Kane, Matthew Kane, and Elmire Price) and (2)
for failing to file a motion to suppress with respect to his statement to police.
See Appellant’s Amended Petition for Post-Conviction Relief Pursuant to the
Post-Conviction Relief Act, 42 Pa.C.S. § 9541 et seq. and Consolidated
Opening Memorandum of Law (Appellant’s PCRA Petition), 7/30/19, at 23-42.
The Commonwealth filed a motion to dismiss, to which Appellant filed a
response.
On February 14, 2020, the PCRA court scheduled an evidentiary hearing
on Appellant’s claim concerning that trial counsel was ineffective for failing to
call three witnesses.4 The hearing took place over three days — November
12, 2020, March 8, 2021, and April 20, 2021.5 On June 24, 2021, the court
issued a notice of intent to dismiss the PCRA petition, stating that his claim
regarding counsel’s ineffectiveness for failing to call the three witnesses was
____________________________________________
4 The court did not grant a hearing on the suppression argument.
5 As the PCRA court noted, “Due to COVID, there were logistical hurdles
resulting in the passage of time and three listings for the hearing.” PCRA Ct.
Op. at 2 n.7.
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“without merit.” PCRA Ct. Rule 907 Notice, 6/24/21, at 1 (unpaginated). The
court further stated: “In addition, after independent review of all relevant
filings, I have also made the decision that your second claim of ineffectiveness
is without merit because the police did not . . . lack probable cause for your
detention and your Miranda warnings were not stale.” Id. (italics in original;
footnote omitted). Appellant did not file a response. Thereafter, on August
13, 2021, the PCRA court entered an order, dismissing Appellant’s petition.
This timely appeal followed.6
Appellant raises the following issues for our review:
1. Was trial counsel ineffective for failing to investigate and call at
trial two exculpatory witnesses?
2. Was trial counsel ineffective for failing to present meritorious
arguments in a pre-trial suppression hearing that would have
resulted in suppression of his custodial statement to police?
Appellant’s Brief at 1 (some capitalization omitted).
Our standard regarding PCRA appeals is well-settled:
When reviewing the denial of a PCRA petition, an appellate court
must determine whether the PCRA court’s order is supported by
the record and free of legal error. Generally, a reviewing court is
bound by a PCRA court’s credibility determinations and its fact-
finding, so long as those conclusions are supported by the record.
However, with regard to a court’s legal conclusions, appellate
courts apply a de novo standard.
____________________________________________
6 On September 14, 2021, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),
to which Appellant timely complied. The PCRA court issued a Pa.R.A.P.
1925(a) opinion on December 14, 2021.
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Commonwealth v. Drummond, 285 A.3d 625, 633 (Pa. 2022) (footnotes &
quotation marks omitted).
Because both of Appellant’s claims concern ineffective assistance of
counsel, we also are guided by the following:
To prevail on a claim of ineffective assistance of counsel, a
PCRA petitioner must satisfy the performance and prejudice test
set forth by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668, 687 (1984). This Court has recast
the two-part Strickland standard into a three-part test by
dividing the performance element into two distinct components.
To prove that counsel was ineffective, the petitioner must
demonstrate: (1) that the underlying claim has arguable merit;
(2) that no reasonable basis existed for counsel’s actions or failure
to act; and (3) that the petitioner suffered prejudice as a result of
counsel’s error. To prove that counsel’s chosen strategy lacked a
reasonable basis, a petitioner must prove that an alternative not
chosen offered a potential for success substantially greater than
the course actually pursued. To satisfy the prejudice prong, a
petitioner must demonstrate that there is a reasonable probability
that the outcome of the proceedings would have been different
but for counsel’s action or inaction. Counsel is presumed to be
effective; accordingly, to succeed on a claim of ineffectiveness the
petitioner must adduce sufficient evidence to overcome this
presumption.
Drummond, 285 A.3d at 634 (footnotes & quotation marks omitted). We
also note: “Failure to satisfy any prong of the test will result in rejection of the
appellant’s ineffective assistance of counsel claim.” Commonwealth v.
McGarry, 172 A.3d 60, 70 (Pa. Super. 2017) (citation omitted).
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In Appellant’s first argument, he claims trial counsel was ineffective for
failing to call two minor siblings, Maya Kane and Mathew Kane, as witnesses.7
See Appellant’s Brief at 30. He states his claim has arguable merit and
counsel failed to provide a reasonable trial strategy based on the following:
[T]rial counsel acknowledged that he was aware that neither
witness selected [Appellant] from the photo array; he was aware
that Maya Kane saw a neck tattoo on the man; and that his client
did not have such a tattoo. There is thus no possible reasonable
explanation for not conducting a pre-trial interview of Matthew
and Maya Kane to see if they would be good witnesses.
Id. at 32. Appellant alleges that he and counsel wanted to call these witnesses
at trial and “[t]he only reason offered by counsel for not calling them . . . was
that he believed that the Commonwealth had subpoenaed them, but the[y]
were not present in court.” Id. at 33. Appellant also notes that counsel did
not have a reason “for not issuing his own subpoena at the time that he
realized that the two witnesses were not in court[.]” Id.
Appellant further alleges that he suffered prejudice as a result of
counsel’s error because Wilcher and Simpson, the two Commonwealth
witnesses who identified and placed Appellant with the victim, O’Neil, near the
____________________________________________
7 At the time of the murder, Maya Kane was eight years old, and Matthew
Kane was 12 years old. See PCRA Ct. Op. at 9. At the PCRA hearing, Maya
Kane testified that “she heard shots outside of her window, looked out, and
saw a man leaving the scene. She believed the man had a neck tattoo but
could not describe the tattoo in any more detail beyond it looking like ‘a little
scribble.’” Id. Matthew Kane testified “he only saw a tattoo on the man’s
right forearm, which is actually consistent with [Appellant].” Id.
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time of the shooting, were incredible. See Appellant’s Brief at 35-37. In
support of this contention, he points to the following: (1) Wilcher and Simpson
did not see Appellant with O’Neil close in time to the shooting but rather 40
minutes earlier; (2) their out-of-court identifications were made at least two
weeks after the shooting and neither witness knew Appellant so they “had no
reason to pay particular attention to him” and they “only had a fleeting view
when their car passed the victim’s car[;]” (3) Wilcher had a prior record and
even though he was not seeking special consideration from the police and
prosecution, “it is difficult to believe that he was not seeking to curry favor[;]”
and (4) Simpson testified that he observed Appellant while he was waiting for
a store to open at 9:00 a.m. so that he could purchase “beer for breakfast,”
and he “also said that the car he saw was ‘brightly’ colored [while] the victim’s
car was white.” Id. at 35-36 (emphasis omitted).
When raising a claim of ineffectiveness for the failure to call
a potential witness, a petitioner satisfies the performance and
prejudice requirements of the Strickland test by establishing
that: (1) the witness existed; (2) the witness was available to
testify for the defense; (3) counsel knew of, or should have known
of, the existence of the witness; (4) the witness was willing to
testify for the defense; and (5) the absence of the testimony of
the witness was so prejudicial as to have denied the defendant a
fair trial. To demonstrate Strickland prejudice, a petitioner must
show how the uncalled witnesses’ testimony would have been
beneficial under the circumstances of the case. Thus, counsel will
not be found ineffective for failing to call a witness unless the
petitioner can show that the witness’s testimony would have been
helpful to the defense. A failure to call a witness is not per se
ineffective assistance of counsel for such decision usually involves
matters of trial strategy.
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Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012) (citations &
quotation marks omitted).
Nevertheless, the Pennsylvania Supreme Court has previously held that
“a defendant who makes a knowing, voluntary, and intelligent decision
concerning trial strategy will not later be heard to complain that trial counsel
was ineffective on the basis of that decision.” Commonwealth v. Paddy,
800 A.2d 294, 316 (Pa. 2002) (citation omitted). “To hold otherwise, would
allow a defendant to build into his case a ready-made ineffectiveness claim to
be raised in the event of an adverse verdict.” Id. In Paddy, the defendant
raised a claim of trial counsel’s ineffectiveness for failing to call alibi witnesses.
The Supreme Court held that “this ineffectiveness claim fails for the
fundamental reason that [the defendant] agreed at trial to counsel’s decision
not to call the witnesses in question.” Id. at 315. As such, “[a] defendant
who voluntarily waives the right to call witnesses during a colloquy cannot
later claim ineffective assistance and purport that he was coerced by counsel.”
Commonwealth v. Lawson, 762 A.2d 753, 756 (Pa. Super. 2000).
A review of the trial testimony reveals that after the Commonwealth
rested and the defense presented its only witness, the following exchange
occurred between the trial court and Appellant concerning his satisfaction with
counsel’s representation and whether he wished to present any additional
witnesses and evidence:
THE COURT: [Appellant], how old are you, sir?
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[Appellant]: [32 years old].
THE COURT: And how far did you go in school?
[Appellant]: I graduated high school.
THE COURT: So you read, write, and understand English?
[Appellant]: Yes.
THE COURT: And are you currently under the influence of any
drugs or alcohol or even medication as you sit here today?
[Appellant]: No.
THE COURT: And have you ever be[en] diagnosed with a mental
illness?
[Appellant]: No.
THE COURT: Have you and your attorney discussed the fact that
you have the right to testify in this matter?
[Appellant]: Yes.
THE COURT: I want to be clear you have an absolute right to
testify and an absolute right not to testify. Do you understand
that?
[Appellant]: Yes.
THE COURT: And the decision whether or not to testify is really
yours and yours alone. Do you understand that?
[Appellant]: Yes.
THE COURT: Although I say it is your decision, I would hope that
you would have -- you know, have spoken to the experts, your
attorneys, about this decision. Have you done that?
[Appellant]: Yes.
THE COURT: . . . You heard me tell the jury during my preliminary
instructions -- and I will again tell them later -- that a defendant
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has no obligation to testify and that they’re not permitted to make
an adverse or negative inference against you if you choose not to
testify, correct?
[Appellant]: Yes.
THE COURT: . . . Have you made a decision as to whether or not
to testify?
[Appellant]: I'm not testifying.
THE COURT: So you have made a decision. Your decision is that
you do not wish to testify, correct?
[Appellant]: Yes.
THE COURT: Okay. And you've spoken to [counsel] about this
decision, correct?
[Appellant]: Yes.
THE COURT: And are you satisfied with the representation
that you received so far?
[Appellant]: Yes.
THE COURT: And are there any other witnesses or any other
evidence that you wish to have presented on your behalf
that has not been done?
[Appellant]: No.
THE COURT: Okay. And I already asked if you're satisfied with
the representation. You said yes, correct?
[Appellant]: Yes.
N.T. 10/6/17, at 61-64 (emphases added).
In denying relief, the PCRA court found the following:
This colloquy makes clear that [Appellant] was advised of
his right to take the stand, to be represented by competent
counsel, and to present additional witnesses and/or evidence.
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Counsel had spoken with [Appellant] about the Kane witnesses
while preparing for trial, their statements were passed during
discovery, and counsel even mentioned the possibility of their
testimony during his opening statement. It is therefore clear that
[Appellant], having been made well-aware of these witnesses and
the substance of their potential testimony, nonetheless indicated
to the court at the conclusion of trial that he was satisfied with his
counsel’s strategy, including the decision not to call the Kane
witnesses. Simply put, [Appellant] made a choice not to have the
Kane siblings testify, and he cannot now come forward and fault
counsel for failing to call them at trial.19 See Commonwealth v.
Pander, 100 A.3d 626, 642 (Pa. Super. 2014) (ineffectiveness
claim for failure to call witnesses fails where “the colloquy
conclusively establishes that Appellant agreed with trial counsel’s
decision not to present additional witnesses”); Commonwealth
v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012) (a claim of
ineffective assistance of counsel cannot succeed “through
comparing, in hindsight, the trial strategy employed with
alternatives not pursued”).
_________________________
Although [Appellant] argues in his Response in Opposition
19
to the Commonwealth’s Motion to Dismiss that his waiver of
the right to call witnesses was invalid because his decision
was not made knowingly, intelligently, and voluntarily
[distinguishing Pander in doing so], no questioning of trial
counsel was done on this issue as it was not raised in earlier
Petitions. Further, the court did a complete colloquy of
[Appellant] regarding his right to testify as well and it was
indeed knowing, intelligent and voluntary.
_________________________
Counsel also had a reasonable basis for not calling the Kane
witnesses. While [Appellant] argues that his counsel’s
“concessions” (that they both wanted the Kanes to testify)
negates any argument that he had a reasonable, strategic basis
for not calling them once he learned that they were not
subpoenaed by the Commonwealth, this argument fails to account
for the totality of the evidence. Trial counsel’s strategy was to call
into question the veracity and reliability of Wilcher and Simpson’s
identifications, Agent Shute’s historical cell site analysis putting
[Appellant] in the area of the murder at the time it occurred, and
to, overall, cast doubt on the Commonwealth’s theory despite the
overwhelming evidence of [Appellant]’s guilt.
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Again, [counsel]’s testimony at the evidentiary hearing was
that he did not believe the Kanes would be particularly helpful to
his client’s case, especially considering their age and the fact that
their identifications themselves were inconsistent: “I did not think
that at a homicide trial [Maya Kane] would at that time, because
of her age, aided us.” He acknowledged that he had spoken with
[Appellant] before trial about the Kane siblings and clarified that
their testimony would not completely support one another. Upon
reviewing the trial testimony, he confirmed that [Appellant] was
comfortable calling just the one witness at trial and that they were
on the same page in terms of strategy. It is therefore clear that
trial counsel had at least “some” reasonable, articulable basis
designed to effectuate [Appellant]’s interests.
* * *
[Appellant] also cannot establish that he was prejudiced,
which alone is sufficient for the PCRA court to dismiss his
ineffectiveness claim. When evaluating prejudice, “the question
is not whether the [d]efendant would more likely than not have
received a different verdict with the evidence, but whether in its
absence he received a fair trial . . . a trial resulting in a verdict
worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434
(1995). The absence of the Kanes’ testimony certainly did not
deprive [Appellant] of a fair trial. The Kanes were not
eyewitnesses to the shooting, and they were just eight and twelve
years old at the time of trial. The nature of their testimony would
be that they heard gunshots from their bedrooms, and saw a man
get out of a white car from an obscured distance 20 feet away
behind a window. Again, their testimonies themselves were
inconsistent, with Matthew’s identification carrying the risk of
putting [Appellant] at the scene of the crime. Their testimony
could not possibly tilt the verdict in [Appellant]’s favor in light of
the overwhelming evidence presented by the Commonwealth,
including:
• Ms. O’Neill’s daughter’s testimony that Ski called
([Appellant]’s acknowledged nickname) the morning of the
murder and Ms. O’Neill’s statement to her daughter that she
was going to meet Ski that morning and needed her
daughter to watch the her younger child.
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• Wilcher and Simpson’s positive identifications of
[Appellant] as the man they saw in the car with the victim
just before her murder.
• Bennett’s testimony and the recorded prison phone call
placing [Appellant] in the car with the victim the morning of
the murder, minutes before it happened.
• The cell phone data establishing [Appellant]’s presence at
the crime scene during the time of the murder, and
displaying patterns in [Appellant]’s behavior that
spontaneously changed that morning.
• The testimony showing that [Appellant] called a cab within
one minute of the 911 call reporting shots being fired, with
the call pinging from a cell phone tower in the area of the
shooting.
• [Appellant]’s use of “*67” to call Ms. O’Neill’s phone two
times immediately after the murder, when he had not done
so in the 156 previous times he called her.
• The testimony arising from [Appellant]’s custodial
statement that was used to show a consciousness of guilt
arising from [his] alleged lie: “[Appellant]’s statement is
interesting because it’s a lie with a little truth wrapping
around it. And when they take him down to homicide, he
says, oh, no, I don’t know anything. I don’t even know her.”
PCRA Ct. Op. at 14-17 (some citations & record citations omitted; emphasis
in original).
After a careful review, we agree with the PCRA court that Appellant is
not entitled to relief on his claim that trial counsel was ineffective in failing to
call the two young children, Maya Kane and Mathew Kane, to testify as
witnesses. First, Appellant’s argument — that he and counsel wanted to call
the two minor witnesses but believed the Commonwealth would subpoena
them first, and therefore, counsel was ineffective for not doing so after
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learning the children would not be called — does not persuade us otherwise.
The aforementioned colloquy plainly demonstrates that Appellant was advised
of his right to present additional witnesses and whether he was satisfied with
counsel’s representation. See N.T., 10/6/17, at 64. Based on Appellant’s
responses, to which he is bound, he voluntarily and knowingly indicated that
he did not wish to present any more witnesses and was content with counsel.
See id. He may not now assert that counsel was ineffective for failing to
present the testimony of these two witnesses. See Paddy, 800 A.2d at 316;
Pander, 100 A.3d at 642.8 Therefore, his ineffectiveness claim lacks arguable
merit.
Moreover, our review of the record supports the PCRA court’s conclusion
that counsel possessed a reasonable basis not to call Maya Kane and Mathew
Kane to testify. The court’s analysis comprehensively and adequately
addresses the claim, and the evidence supports its determination. We discern
____________________________________________
8We note that for the first time on appeal, Appellant suggests that the colloquy
was deficient because specific witnesses were not named during the
questioning and therefore, his “one word ‘no’ response to the leading question
of whether there are witnesses or evidence he wishes to offer hardly fits the
bill.” Appellant’s Brief at 38-39. It is well-settled that “[i]ssues not raised in
the lower court are waived and cannot be raised for the first time on appeal.”
Pa.R.A.P. 302(a); see also 42 Pa.C.S. § 9544(b). “This requirement bars an
appellant from raising a new and different theory of relief for the first time on
appeal.” Commonwealth v. Phillips, 141 A.3d 512, 522 (Pa. Super. 2016)
(citation & quotation marks omitted). Accordingly, to the extent that
Appellant raises a sufficiency claim regarding the colloquy, we find it waived
pursuant to Rule 302.
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no legal error on the part of the PCRA court, and therefore, Appellant is not
entitled to any relief. Accordingly, Appellant’s first claim fails.
In his second argument, Appellant contends that counsel was ineffective
for failing to raise suppression claims that his custodial statement was the
product of an illegal detention, and that his Miranda warnings were stale
when he provided a statement to police.9 See Appellant’s Brief at 44.
Appellant first alleges that his statement to police was the fruit of an illegal
detention because “there was no showing of probable cause and . . . no arrest
warrant.” Id. This purported illegal detention argument lends itself to
Appellant’s next complaint — that while being detained, he was originally
provided with Miranda warnings when he arrived at the police station on
August 30, 2011, but police did not re-administer the warnings until 27 hours
later when Appellant gave a formal statement. He argues the warnings
became “remote” and “detectives were required to readvise [him] of his
Miranda warnings [but] failed to do so.” Id. at 47-48. He maintains that as
a result of police inaction, his statement was not admissible. Appellant further
asserts that counsel was ineffective for failing to raise these issues at the
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9 It merits mention that counsel did file a motion to suppress, and a hearing
was held on the matter. See PCRA Ct. Op. at 20. Counsel raised the issue of
whether or not Miranda warnings were given, and whether Appellant
voluntarily and knowingly waived his rights. See id. The trial court “held that
Detective Lucke had given [Appellant] the Miranda warnings and that [his]
statement was voluntary.” Id.; see also N.T., 1/24/17, at 59.
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suppression hearing because they were “of arguable merit and counsel had
no reasonable strategic basis for failing to make” these arguments. Id. at 48.
Appellant states that “[t]here [was] a reasonable probability that but for
counsel’s failure, the outcome of the proceedings would have been different.”
Id. at 50. He points to the following:
[Appellant]’s admissions contained in the statement were highly
prejudicial. [Detective] Crone testified that [Appellant] said that
he did not know [O’Neil]. In his later statement, he admit[ed] to
knowing [O’Neil] and having a drug dealer/buyer relationship with
her. Because the jury heard that [Appellant] lied initially, it was
unlikely to believe the content of his statement – that he left [the
victim] before she was shot – and was even more likely to infer
guilt.
Likewise, [Appellant]’s statement that [O’Neil] dropped him
off at Gratz and York streets conflicted with the Commonwealth’s
historical cell site analysis expert, Shute. Likely finding that
[Appellant]’s statement was not truthful, the jury was much more
likely to find [him] guilty. Had the statement been suppressed,
the jury would have been left with two incredible eyewitnesses
and an expert whose testimony was challenged by a defense
expert. Combined with the three eyewitnesses who failed to
identify [Appellant], including Maya[ Kane]’s specific description
that directly excluded [Appellant], there is a reasonable likelihood
that the outcome of the proceedings would have been different.
Id.
Regarding Appellant’s illegal detention argument, the PCRA court
properly addressed this claim as follows:
[Appellant] was brought in for questioning on August 30th, 2011
after Detectives learned that he was with [O’Neil] just before she
was murdered. This information alone provided the Detectives
with sufficient probable cause, and therefore entitled them to
bring [Appellant] in for questioning. See Commonwealth v.
Mitchell, 383 A.2d 930, 932 (Pa. 1978) (finding probable cause
for warrantless arrest where police knew through their
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investigation that the victim was last seen alive with Mitchell and
another person on the way to the scene of the murder, and
rejecting derivative ineffectiveness claim); Commonwealth v.
Ryles, 418 A.2d 542, 546 (Pa. Super. 1980) (that defendant was
“the last person known to have been with the victim prior to the
slaying” was among relevant circumstances giving rise to probable
cause to arrest him).
Since the Detectives did indeed have probable cause
pursuant to both Mitchell and Ryles, even if [Appellant]’s trial
counsel had raised this issue at the suppression hearing, he would
not have succeeded. “Counsel will not be deemed ineffective for
failing to raise a meritless claim.” Com[monwealth] v. Spotz,
896 A.2d 1191, 1210 ([Pa.] 2006) (citing Commonwealth v.
Tilley, 780 A.2d 649 ([Pa.] 2001)).
PCRA Ct. Op. at 18-19 (record citation omitted). We agree with the PCRA
court that Appellant’s illegal detention claim has no merit based on Mitchell
and Ryles.
Next, we turn to his “staleness” argument. We are guided by the
following:
There is no prophylactic rule that a suspect must be rewarned of
his constitutional rights each time custodial interrogation is
renewed. Instead, we must view the totality of circumstances in
each case to determine whether such repeated warnings are
necessary.
Pertinent to such an inquiry are the length of time between
the warnings and the challenged interrogation, whether the
interrogation was conducted at the same place where the
warnings were given, whether the officer who gave the warnings
also conducted the questioning, and whether statements obtained
are materially different from other statements that may have been
made at the time of the warnings.
Commonwealth v. Bennett, 282 A.2d 276, 279-80 (Pa. 1971) (citations
omitted).
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Here, a review of the record reveals that Appellant was transported to
the police station at 11:00 a.m. on August 30, 2011, and he spoke with
Detectives Lucke and Byard at 1:00 p.m. See N.T., 10/4/17, at 176-77.
Detective Lucke indicated that Appellant’s handcuffs had been removed and
he “did tell [Appellant] why he was there and what the investigation was
about.” Id. at 176. The detective read Appellant his Miranda warnings, to
which Appellant agreed to speak with police. Id. at 179-80. Detective Lucke
also asked him seven additional questions “to ascertain that [he] . . .
understood those warnings.” Id. at 179. Appellant told Detective Lucke that
he did not know the victim and he knew nothing about her death. Id. at 181.
Due to other murder investigations that required police assistance, the
detectives stopped the interview, and Appellant remained in the locked
interview room. Id. at 32, 181. During this time, he was provided with food,
beverages, cigarettes, and bathroom facilities. See N.T., 1/24/17, at 23.10
The following day at approximately 4:30 p.m., the formal interview
began and lasted for approximately five to six hours. See N.T., 10/4/17, at
33, 187. Detective Crone conducted the interview with Detective Lucke
present in the room. Id. at 33. Appellant then agreed to give a formal written
statement, to which Detective Crone typed his responses and Appellant signed
at the bottom of each page, indicating that was “a true and accurate account
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10 Interviewees are permitted to sleep in the room. See N.T., 1/24/17, at 23.
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of the incident[.]” Id. at 36-37. In the written statement, Appellant
acknowledged the following: (1) he was being questioned in reference to
O’Neil’s death; (2) he was not under arrest at the time; (3) at the conclusion
of the interview, he would not be charged with a crime and was free to leave;
(4) any mention of drugs was not the focus of the investigation and any
narcotics information he provided would not be used to charge him at that
time or in the future; (5) he remembered speaking with Detective Lucke the
day before, and he requested that Miranda warnings be read to him and he
understood those warnings; (6) he knew O’Neil because she was his marijuana
supplier; (7) on the day prior to O’Neil’s death, he met with her to purchase
three pounds of drugs and once the transaction was completed, he walked
away; (8) on the morning of O’Neil’s death, he met with her to purchase four
more pounds of drugs and he again walked away after the sale was completed;
and (9) he learned about O’Neil’s death from her nephew and neighborhood
friends. Id. at 43-50.
In applying the Bennett factors to the present matter, we note that
while the interrogation was conducted at the same place where the warnings
were given, it was 27 hours between the time the warnings were given and
when the challenged interrogation took place, Detective Lucke gave the
warnings whereas Detective Crone conducted the questioning, and the
statements obtained were materially different from Appellant’s earlier
statements. See Bennett, 282 A.2d at 279-80. We find there is plausible
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merit to Appellant’s assertion that repeated Miranda warnings were
necessary. See Commonwealth v. Wideman, 334 A.2d 594, 599 (Pa.
1975) (concluding Miranda warnings were stale when a materially different
statement was given 12 hours after the warnings issued by different officers
in another interrogation room); Commonwealth v. Riggins, 304 A.2d 473,
478 (Pa. 1973) (holding defendant should have been re-warned where
statement was provided 17 hours after initial warnings were given in car, and
confession was given in a custodial room to different officers than those that
gave the warning).
Nevertheless, even if there is arguable merit to Appellant’s claim, we
conclude that he has failed to establish the prejudice prong of the
ineffectiveness test — that counsel’s error prejudiced him to the extent that
the outcome of the underlying proceeding would have been different but for
counsel’s error. See Drummond, 285 A.3d at 634. As the PCRA court
properly found:
Even if the court were to find that [counsel] was ineffective for
failing to raise the issues of probable cause and staleness at the
suppression hearing, reading [Appellant]’s statement to the jury
at trial did not result in any unfair prejudice. [Appellant] argues
that he was prejudiced because the Commonwealth used his
statement during its closing to “insinuate that he was a liar.”
Counsel’s strategic decision to forgo arguing staleness of a non-
inculpatory statement did not prejudice him. Counsel’s omission
did not adversely affect the outcome of the proceedings and
therefore given that the jury heard evidence that [Appellant]
called the victim shortly before the murder, that the victim told
her daughter she was meeting [Appellant], and [he] was with the
victim and her boyfriend on a recording telephone call minutes
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before the murder all related to drug distribution, [Appellant] was
not prejudiced by the . . . admission of his statement.
PCRA Ct. Op. at 23 (citation omitted).
We agree with the PCRA court’s well-reasoned analysis.11 The record
defeats Appellant’s assertion that he suffered prejudice as a result of counsel’s
inaction — in the statement at issue, Appellant averred that he purchased
drugs from O’Neil on the morning of the incident, and there was considerable
circumstantial evidence that placed Appellant with O’Neil a few minutes before
her murder. Appellant’s argument fails to demonstrate that the outcome of
the underlying proceeding would have been different but for counsel’s error.
We reiterate that the failure to prove any prong of the ineffectiveness test is
fatal to the PCRA petition. See McGarry, 172 A.3d at 70. Therefore,
Appellant is not entitled to relief with respect to his second claim. Accordingly,
we shall not disturb the PCRA court’s denial of Appellant’s PCRA petition.
Order affirmed.
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11We note that the PCRA court found that Appellant’s Miranda warnings did
not go stale based on the totality of the circumstances. See PCRA Ct. Op. at
21-23. Nevertheless, it is well-settled that we may affirm on any basis. See
Commonwealth v. Clouser, 998 A.2d 656, 661 n.3 (Pa. Super. 2010).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/9/2023
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