Com. v. Bass, T. ( 2015 )

J-S60006-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TYREE BASS,
Appellant No. 2845 EDA 2014
Appeal from the PCRA Order Entered September 12, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s):
CP-51-CR-0005903-2008
CP-51-CR-0005904-2008
CP-51-CR-0005905-2008
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 20, 2015
Appellant, Tyree Bass, appeals pro se from the September 12, 2014
order denying his petition filed under the Post Conviction Relief Act (PCRA),
42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.
The facts and procedural history of Appellant’s case are set forth in the
PCRA court’s opinion, and we need not reproduce them herein. See PCRA
Court Opinion (PCO), 12/17/14, at 1-4. However, we note that Appellant
was convicted, following a jury trial, of second-degree murder, attempted
murder, aggravated assault of an unborn child, conspiracy to commit arson,
and possessing an instrument of crime. On April 22, 2010, he was
sentenced to an aggregate term of life imprisonment, without the possibility
of parole, plus a consecutive term of 35½ to 75 years’ incarceration. On
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June 7, 2011, this Court affirmed Appellant’s judgment of sentence, and our
Supreme Court denied his subsequent petition for permission to appeal.
Commonwealth v. Bass, No. 1640 EDA 2010, unpublished memorandum
(Pa. Super. filed June 7, 2011), appeal denied, 32 A.3d 1274 (Pa. 2011).
Appellant filed a timely, pro se PCRA petition on August 21, 2012.
Counsel was appointed, but rather than filing an amended petition on
Appellant’s behalf, counsel filed a petition to withdraw and ‘no merit’ letter in
accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). On April 14,
2014, the PCRA court filed a Pa.R.Crim.P. 907 notice of its intent to dismiss
Appellant’s petition, and Appellant filed a pro se response. On September
12, 2014, the PCRA court issued an order dismissing Appellant’s petition and
granting PCRA counsel’s petition to withdraw. Appellant filed a timely, pro
se notice of appeal, and also timely complied with the PCRA court’s order to
file a Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal. In that statement, Appellant preserved the following four issues for
our review:
a. [T]he [PCRA] [c]ourt committed an error of law by
determining that trial counsel[,] Gary Sanford Server and W.
Fred Harrison, [were] not constitutionally ineffective in that trial
counsel permitted, without objection, the jury to review during
deliberation the unduly suggestive photo-array without also
having the related witnesses[’,] Cassandra Cook-Powell and
Kenneth Watts[,] statements to police;
b. [T]he [c]ourt committed an error of law by determining that
trial counsel’s [sic] were not constitutionally ineffective for failing
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to move to stricken [sic] prejudicial hearsay testimony elicited
from Kevin Cook, and failing to request [] a curative instruction;
c. [T]he [c]ourt committed an error of law by determining that
trial counsel’s [sic] were not constitutionally ineffective for failing
to investigate and call critical/potential witnesses for the
defense, interview them and, afterwards, call them to testify at
trial, who were mentioned in the discovery materials as having
been with the victim’s [sic] or near the crime scene when the
shooting occurred, and trial counsel’s [sic] failed to explore all
available alternatives to assure that the jury heard the testimony
of these known witnesses, to-wit, Belinda Hamilton and Omar,
whom [sic] testimonies could have been capable of casting doubt
upon the prosecution witnesses[’] truthfulness;
d. [T]he [c]ourt committed an error of law by denying
[Appellant’s] petition for post-conviction collateral relief without
a hearing pursuant to Pa.R.Crim.P. 907, and by denying
[Appellant’s] request for permission for leave to amend his PCRA
petition to add a claim of ineffective assistance of counsel
rendered by PCRA counsel James Lammendola, Esquire[], in
conformity with the [p]rescripts delineated under Pa.R.Crim.P.
905(A), as requested in “Petitioner’s Response to the Court’s
Proposed Dismissal/Disposition Without Hearing Pursuant to
Pa.R.Crim.P. 907” dated August 25, 2014.
Rule 1925(b) Statement, 10/24/14, at 1-2 (unnumbered; emphasis and
unnecessary capitalization omitted).
In Appellant’s brief to this Court, he does not present any argument
regarding issues (b) or (d). Therefore, those claims are waived. See
Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (“[W]here an
appellate brief fails to provide any discussion of a claim with citation to
relevant authority or fails to develop the issue in any other meaningful
fashion capable of review, that claim is waived.”) (citations omitted).
Additionally, in issue (c) of Appellant’s Rule 1925(b) statement, he refers
only to trial counsel’s failure to call Belinda Hamilton and an individual
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named “Omar.” Accordingly, in the PCRA court’s Rule 1925(a) opinion, it
only addresses counsel’s failure to call these two witnesses. See PCRA
Court Opinion (PCO), 12/17/14, at 8-10. In Appellant’s brief to this Court,
however, he adds several more individuals whom counsel purportedly should
have called as defense witnesses. See Appellant’s Brief at 27. By not
referring to these additional witnesses in his Rule 1925(b) statement,
Appellant has waived review of his claim that counsel was ineffective for
failing to properly investigate, and/or call to the stand, these individuals. 1
See Pa.R.A.P. 1925(b)(4)(ii) (“The Statement shall concisely 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)(vii)
(“Issues not included in the Statement and/or not raised in accordance with
the provisions of this paragraph (b)(4) are waived.”).
In regard to the issues properly preserved by Appellant in his Rule
1925(b) statement and argued in his brief, we have thoroughly reviewed the
certified record, the briefs of the parties, and the applicable law.
Additionally, we have reviewed the opinion of the Honorable Glenn B.
Bronson of the Philadelphia County Court of Common Pleas. We conclude
that Judge Bronson’s well-reasoned decision accurately disposes of
____________________________________________
1
We note that the PCRA court’s order directing Appellant to file a Rule
1925(b) statement informed Appellant that any issues not raised in his
concise statement would be deemed waived. See PCRA Court Order,
10/3/14.
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Appellant’s two preserved claims, i.e., issues (a) and (c) in his Rule 1925(b)
statement. See PCO at 5-7 (discussing Appellant’s issue (a)); 8-10
(assessing Appellant’s issue (c)). Accordingly, we adopt Judge Bronson’s
opinion as our own and affirm the order denying Appellant’s PCRA petition
for the reasons set forth therein.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2015
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IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
COMMONWEALTH OF CP-51-CR-0005903-2008
PENNSYLVANIA CP-51-CR-0005904-2008 ·
I'["(' j r•; 2· n'!:1 : CP-51-CR-0005905-2008
_J L. r ... ' ·- ., J
v.
CP-51-CR-0005903-2008 Comm. v. Bass. Tyree
TYREE BASS Opinion
OPINION IIIII II I I 111111111111111
7235702911
BRONSON,J. December 17, 20 I 4
I. PROCEDURALBACKGROUND
On March 3, 2010, following a jury trial before the Honorable Carolyn Engel Temin,
defendant Tyree Bass was convicted of one count of second-degree murder (18 Pa.C.S. §
2502(b)), one count of attempted murder (18 Pa.C.S. § 901), one count of aggravated assault
of an unborn child (18 Pa.C.S. § 2606), conspiracy to commit arson (18 Pa.C.S. § 903), and
one count of possessing an instrument of crime (18 Pa.C.S. § 907). On April 22, 2010, Judge
Temin imposed an aggregate sentence of life without parole plus 35 Yz to 75 years
incarceration. Defendant filed post-sentence motions, which Judge Temin denied on May 17,
2010. Defendant was represented at trial and at sentencing by Gary Server, Esquire, and Fred
Harrison, Esquire.
On June 7, 2011, the Superior Court affirmed defendant's judgment of sentence. On
November 14, 2011, the Supreme Court of Pennsylvania declined to hear defendant's petition
for appeal. Defendant was represented on appeal by Mr. Server. Defendant then filed a pro
se petition under the Post-Conviction Relief Act ("PCRA") on August 21, 2012. James
Lammendola, Esquire was appointed to represent defendant on July 12, 2013.
On February 11, 2014, pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988), J\A.r. Lammendola filed a letter stating there was no merit to defendant's claims for
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collateral relief. See Finley Letter of James Lammendola, Esquire, filed 2/11/2014 ("Finley
Letter"). Since Judge Temin had retired from the bench, this matter was then assigned to the
undersigned judge on February 21, 2014. On April 14, 2014, the Court issued notice pursuant
to Pa.RCrim.P. 907 ("907 Notice>') of its intent to dismiss defendant's PCRA Petition without
an evidentiary hearing. Defendant filed a response to the 907 Notice ("907 Response") on
August 28, 2014. On September 12, 2014, the Court formally dismissed defendant's PCRA
Petition and granted Mr. Lammendola's motion to withdraw his appearance.
Defendant has now appealed the Court's dismissal of his PCRA Petition, alleging that:
1) counsel was ineffective for permitting the jury, while deliberating, to review defendant's
photo-array without also having the statements to police made by witnesses Cassandra Cook-.
Powell and Kenneth Watts; 2) counsel was ineffective for failing to move to strike prejudicial
hearsay testimony from witness Kevin Cook, and for failing to request a curative instruction;
3) counsel was ineffective for failing to investigate, interview, and call as witnesses, Belinda
Hamilton and "Omar"; and 4) the Court erred by denying defendant's PCRA Petition without
a hearing and by denying defendant's request to amend his Petition to add a claim of
ineffective assistance of PCRA counsel. Defendant's Concise 1925(b) Statement of
Matters/Errors Complained of on Appeal ("Statement of Errors") at~~ 2(a)-2(d). For the
reasons set forth below, defendant's claims are without merit, and the PCRA Court's order
dismissing his PCRA Petition should be affirmed.
II. FACTUALBACKGROUND
The factual background of this matter is set forth in Judge Terniri's Opinion on direct
appeal:
A few days prior to January 21, 2009, Kenny Watts ("Watts")
introduced his friend, Cassandra Cook-Powell ("Cook-Powell"), to his
other friend, [defendant]. They spoke on the telephone and the two
entered into an arrangement whereby [defendant) was to pay Cook-Powell
$1,000 in exchange for Cook-Powell providing [defendant} with
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information that would allow him to get a tax refund of several times that
amount. [Defendant] never paid Cook-Powell.
At this time, Cook-Powell was living with her husband, Charles
Powell ("Powell"), and their two children at the residence of her brother,
Kevin Cook ("Cook") at 1524 Overington Street. Cook's pregnant
girlfriend, Emine Hajrejinaj ("Emine") also lived at this residence, as well
as Michael Green ("Green"), the Cook's [sic] teenage cousin.
When [defendant] did not pay Cook-Powell as per their
arrangement, she called Watts and explained the situation. Watts called
[defendant] and told him that Cook-Powell wanted her money.
[Defendant] asked Watts, "Do I need to get my pump?" referring to a
shotgun.
The next day, January 27, 2008, when Cook-Powell still had not
received her money, she went to [defendant's] house at 1519 Adams
A venue, around the corner from the Cook residence. Cook drove her to
[defendant's] house. He remained in his car and watched as Cook-Powell
picked up two bricks and threw them through [defendant's] windows,
breaking the glass.
[Defendant's] girlfriend . called Watts and ranted about their
windows. Watts heard [defendant] in the background say, "Its on and
popping." Watts called Cook-Powell and told her that (defendant] was
furious about his windows and warned her to "watch her back."
On January 31, 2008 at approximately 1 a.m., Emine drove Cook's
Chrysler Sebring to McDonald's with Cook in the passenger seat. The
rest of the people living at the residence remained at home. The couple
returned home approximately fifteen minutes later and as they pulled up to
the residence, they saw [defendant] and another male standing outside
their house. Cook knew [defendant] because they had met earlier in the
week and spent a few hours together drinking beers at Cook's house.
Cook noticed that [defendant] had a shotgun and he also saw a red gas can
and two Snapple bottles. Cook rolled down the window and asked
[defendant] what he was doing. Cook told [defendant] that his sister was
not home> that there were kids in the house, and that his girlfriend, Emine,
was pregnant. He told [defendant] to go home. The two men talked for
three or four minutes. Although Book [sic] begged him not to shoot,
[ defendant] fired a shot that went through the passenger side front door.
Then he moved in front of the passenger window, with the muzzle of the
shotgun in the car, and fired two more shots that hit Cook's right shoulder
and left arm. He fired again and hit Emine in the back as she attempted. to
turn away. He fired one more shot that hit Cook in the center of his chest.
[Defendant] and the other male ran away and Cook got out of the car in a
daze. A neighbor took him to the hospital where he blacked out and went
into a coma. Police were called and medics took Emine to the hospital.
Although she was pronounced dead at I :47 a.m., doctors were able to save
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her baby through a Cesarean Section. A baby girl ("Baby Cook") was
delivered at 28 weeks old in extreme critical condition.
Emine died as a result of a single shotgun wound to her upper
back. Cook woke up from his coma two weeks later. He remained in the
hospital for two-and-one-half months and went through nine or ten
surgeries. He still suffers from his injuries. Baby Cook was in the
hospital for six months. She is now two years old and cannot talk. She
requires special medical care that includes the use of a feeding tube.
Trial Court Opinion, filed August 11, 2010.
III. DISCUSSION
If court-appointed counsel for a PCRA petitioner determines that the issues the
petitioner raises for collateral review are meritless, and the PCRA court concurs, counsel may
withdraw and the petitioner may proceed pro se, by privately retained counsel, or not at all.
Finley, 550 A.2d at 218. To be permitted to withdraw, petitioner's counsel must file a no-
merit letter, or "Finley letter," detailing the nature and extent of counsel's review and listing
each issue the petitioner wished to raise, with counsel's explanation as to why the issues are
meritless. Commonwealth v. Pitts, 981 A.2d 875, 876 (Pa. 2009) (quoting Finley, 550 A.2d at
215). After reviewing a Finley letter, the PCRA court is required to independently review the
record to evaluate the petitioner's claims. Id. A PCRA petition may be dismissed without a
hearing if the Court determines that there are no claims of arguable merit and no purpose
would be served by further proceedings. Commonwealth v. Lignons, 971 A.2d 1125, 1143
(Pa. 2009); see Pa.R.Crim.P. 907(1).
In his prose PCRA petition, defendant claimed that he was entitled to collateral relief
on the following grounds: l) trial counsel was ineffective for failing to object to object to the
jury being permitted to review a police photo array containing defendant without also having
the statements of witnesses Cook-Powell and Watts; 2) trial counsel was ineffective for failing
to object to hearsay testimony from Cook; and 3) trial counsel was ineffective for failing to
call defense witnesses. PCRA Petition at pp. 3-4. Defendant further claimed ineffective
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assistance of PCRA counsel in his Response to the Court's 907 Notice. 907 Response at~~ 9,
11. Each of defendant's claims is considered below.
A. Ineffective Assistance of Counsel
Three of defendant's claims are premised upon his contention that he received
ineffective assistance of counsel. Under Pennsylvania law, counsel is presumed to be
effective and the burden to prove otherwise lies with the petitioner. Commonwealth v.
Basemore, 744 A.2d 717, 728 (Pa. 2000), n.10 (citing Commonwealth v. Copenhefer, 719
A.2d 242, 250 (Pa. 1998)). To obtain collateral relief based on the ineffective assistance of
counsel, a petitioner must show that counsel's representation fell below accepted standards of
advocacy and that as a result thereof, the petitioner was prejudiced. Strickland v. Washington,
466 U.S. 668, 694 (1984). In Pennsylvania, the Strickland standard is interpreted as requiring
proof that: (1) the claim underlying the ineffectiveness claim had arguable merit; (2) counsel's
actions lacked any reasonable basis; and (3) the ineffectiveness of counsel caused the
petitioner prejudice. Commonwealth v. Miller, 987 A.2d 638, 648 (Pa. 2009); Commonwealth
v. Pierce, 527 A.2d 973 (Pa. 1987). To satisfy the third prong of the test, the petitioner must
prove that, but for counsel's error, there is a reasonable probability that the outcome of the
proceeding would have been different. Commonwealth v. Sneed, 899 A.2d 1067, 1084 (Pa.
2006) (citing Strickland, 466 U.S. at 694). If the PCRA court determines that any one of the
three prongs cannot be met, then the court need not hold an evidentiary hearing as such a
hearing would serve no purpose. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.
2008), appeal denied, 956 A.2d 433 (Pa. 2008).
1. Failure to Request that Witness Statements be Sent Out to Deliberating Jury
Defendant first claims "the Court committed an error of law by determining that trial
counsel. .. was not constitutionally ineffective in that trial counsel permitted, without
objection, the jury to review during deliberation the unduly suggestive photo-array without
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also having the related witnesses Cassandra Cook-Powell and Kenneth Watts' statement to
police." Statement of Errors at ,r 2(a). This claim is without merit.
The Rules of Criminal Procedure provide that, "[ uJpon retiring, the jury may take with
it such exhibits as the trial judge deems proper except (that] ... [d]uring deliberations, the jury
shall not be permitted to have: ( 1) a transcript of any trial testimony; (2) a copy of any written
or otherwise recorded confession by the defendant; (3) a copy of the information; [or] (4)
writtenjury instructions." Pa.R.Crim.P. 646. In general, a jury should be permitted to review
materials during deliberations where those materials inform the jury and aid it in the
determination of the facts. Commonwealth v. Lilliock, 740 A.2d 237, 243 (Pa. Super. 1999),
appeal denied, 795 A.2d 972 (Pa. 2000). However, a Court should not allow the jury to
possess an exhibit if it is likely that the jury would skew its importance or give it undue
emphasis. Commonwealth v. Dupre, 866 A.2d 1089, 1102 (Pa. Super. 2005), appeal denied,
879 A.2d 781 (Pa. 2005); Commonwealth v. Strong, 836 A.2d 884, 888 (Pa. 2003);
Commonwealth v. Riggins, 386 A.2d 520, 525 (Pa. 1978). So long as an exhibit is not
specifically prohibited by the rule from being submitted to the jury, a trial court's decision to
grant or deny jury access to such an exhibit will not be reversed absent an abuse of discretion.
See e.g., Commonwealth v. Bango, 742 A.2d 1070, 1072 (Pa. 1999); Riggins, supra, 386 A.2d
at 525.
Here, the deliberating jury requested that the judge send out the statements of Cook-
Powell and Watts and the photo spread. However, while the statements of Cook-Powell and
Watts were identified by the witnesses and admitted into evidence, the contents of the
statements were never read to the jury. N.T. 3/2/10 at 45-47; N.T. 2/23/10 at 18-19, 101. The
sole use of the statements at trial was to confirm that these witnesses were interviewed by, and
gave statements to, the police. For that reason, it would have been manifestly inappropriate
for the trial judge to send out the statements to the jury and have the jurors, during
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deliberations, see the contents of the statements for the first time. Accordingly, Judge Temin
denied the jurors request for the statements. N.T. 3/2/10 at 45-47. Because the record
establishes that Judge Ternin's decision was reasonable, defense counsel had no valid ground
for objecting to the Cami's ruling and, therefore, could not have been ineffective for failing to
do so. No relief is due.
2. Failure to Object to Hearsay Testimony
Defendant next claims that the Court erred in "determining that trial counsel's [sic]
were not constitutionally ineffective for failing to move to stricken [sic] prejudicial hearsay
testimony elicited from Kevin Cook, and failing to request for a curative instruction."
Statement of Errors at~ 2(b). From defendant's PCRA Petition, it is apparent that defendant
is referring to testimony by Cook, in which he stated that he had told his brother-in-law,
Charles Powell, that "Tyree [the defendant] shot me." According to defendant, Cook's out-of-
court statement to Powell identifying defendant as the shooter was hearsay, since it was
offered to prove the truth of the matter asserted, that is, that defendant was the person who
shot Cook. PCRA Petition at p. 22-24.
This claim is frivolous. Rule 803.1 (2) provides for an exception to the hearsay rule for
"[a) prior statement by a declarant-witness identifying a person or thing, made after perceiving
the person or thing, provided that the declarant-witness testifies to the making of the prior
statement." Pa.RE. 803 .1 (2). Under this rule, a witness may testify to any prior identification
that he or she made, so long as the witness testifies at trial and is subject to cross-examination.
Because any such prior identification is admitted as an exception to the hearsay rule, it is
properly considered by the factfinder for the truth of the matter asserted. See Pa.R.E. 803.1 (2);
Commonwealth v. Wilson, 861 A.2d 919, 920 (Pa. Super. 2004). Because the testimony here
at issue was admissible under an exception to the hearsay rule, counsel could not have been
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ineffective for failing to move to strike it or for failing to request a curative instruction. No
relief is due.
3. Failure to Call Defense Witnesses
Defendant next claims that the Court erred by "determining that trial counsel's [sic]
were not constitutionally ineffective for failing to investigate and call ... Belinda Hamilton and
Omar, whom testimonies could have been capable of casting doubt upon the prosecution
witnesses truthfulness." Statement of Errors at~ 2(c). This claim is without merit.
In order to prevail on a claim that trial counsel was ineffective in failing to call a
witness, the petitioner must plead and prove "that: (1) the witness existed; (2) the witness was
available to testify for the defense; (3) counsel knew 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
witness' testimony was so prejudicial to have denied [the defendant] a fair trial."
Commonwealth v. Walls, 993 A.2d 289, 302 (Pa. Super. 2010) (quoting Commonwealth v.
Wright, 961 A.2d 199, 155 (Pa. 2001)).
In his PCRA Petition, defendant asserts that trial counsel should have called Belinda
Hamilton as a witness in order to impeach Kenny Watts' testimony that defendant said "Do I
need to get my pump?" and "Its' on and popping." PCRA Petition, p. 36-38. However,
nothing in the record supports defendant's assertion that the absence of Hamilton's testimony
was prejudicial to his case.
As to defendant's reference to his "pump,"' it is true that Watts testified that he had a
telephone conversation with defendant during which defendant told Watts, "Do I have to go
get the pump? Do I need the pump"," after Watts told defendant that Cook-Powell was trying
to contact defendant about the money defendant owed her. N.T. 2/23/10 at 94-96. However,
1
A "pump" is a street term for a shotgun. N.T. 2/23/1 O at 96.
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there is nothing in the evidence suggesting that Hamilton was present at the time and could
have impeached Watts' testimony about that conversation. Id.
Watts also testified that the day after Cook-Powell broke the windows at defendant's
house, defendant's girlfriend, Jillian Sanders, called Watts to complain. While talking with
Sanders, Watts could hear defendant in the background say, "Its on and popping." N.T.
2/23/10 at 96-97. It is true that Hamilton, in a statement that she gave to the police, stated that
she was with Watts when he received the telephone call from Sanders and that she "could
overhear what they were saying." Exhibit E to PCRA Petition (Hamilton's statement) at 1. It
is further hue that Hamilton's statement makes no reference to any statements made by
defendant during that telephone call. Id. Assuming arguendo that Hamilton was available to
testify at trial and would have testified consistent with her statement, there is no reason to
believe that she would have substantially impeached Watts' testimony. First, Hamilton was
never asked, during her statement, whether she could overhear any statements of defendant in
the background or otherwise. Second, the fact that Hamilton, who was not on the phone
during the conversation between Sanders and Watts, could not hear a speaker in the
background on the other end of the call would be expected and not surprising. In any event,
the absence of Hamilton's proffered testimony certainly was not sufficiently prejudicial as to
have denied defendant a fair trial.
Moreover, defendant never averred in his petition that Hamilton was now available to
testify, and PCRA counsel avers that Hamilton cannot be located. That is also fatal to
defendant's claim.
As to counsel's failure to call "Omar," the record establishes that trial counsel, at
defendant's request, sent an investigator to a bar to explore an alibi claimed by defendant, and
that the defense investigator interviewed a bartender named, "Omar." N.T. 2/25/2010 at 80.
According to trial counsel's representation to the Court during the trial, "Omar told us that he
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didn't recall anything, didn't know [ defendant], didn't know anything about anything. So that
was all the information that we got about the alibi." N.T. 2/25/2010 at 80. While defendant
avers in the petition that the investigator's interview of Omar was "specious," he proffers
nothing to suggest that "Omar," if available, would be in any way helpful to the defense.
Moreover, PCRA counsel avers that he has received no information enabling him to identify
"Omar" or to locate him.
The record therefore demonstrates that defendant was not denied effective assistance
of counsel due to trial counsel's failure to call witnesses Hamilton and "Omar." This Court,
therefore, did not en- in denying defendant relief on this claim.
B. Court Error in Denying Petition without Hearing and Denying Request to Amend
Petition
Finally, defendant asserts that the Cami erred by denying defendant's PCRA Petition
without a hearing and by denying defendant's 907 Response request for permission to amend
the petition to assert a claim of ineffective assistance of PCRA counsel. Statement of Errors at
~ 2( d). These claims are without merit.
Defendant's claim that the court erred by dismissing the PCRA Petition without a
hearing fails to specify any substantive claims for relief for which there were any genuine
issues of fact that would require a hearing. Therefore, no relief is due on this claim.
In his 907 Response, defendant requested leave to amend his petition to add a claim of
ineffectiveness of PCRA counsel, Mr. Lammendola. Defendant further asserts that Mr.
Lammendola was ineffective for failing "to understand the evolution of the standard for
ineffective assistance of trial counsel." 907 Response at~ 16. For the reasons stated above,
defendant's underlying claims are without merit. Because all of the underlying claims are
without merit, the derivative claim of PCRA counsel's ineffectiveness is equally meritless.
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IV. CONCLUSION
For all of the foregoing reasons, the Court's order dismissing Defendant's PCRA
petition should be affirmed.
BY THE COURT:
~13~
GLENN B. BRONSON, J
1I