Com. v. Watson, A. ( 2023 )

J-S43021-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALEX WATSON :
:
Appellant : No. 787 EDA 2022
Appeal from the PCRA Order Entered February 24, 2022,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0001353-2017.
BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY KUNSELMAN, J.: FILED MARCH 27, 2023
Alex Watson appeals pro se from the order denying his first petition filed
pursuant to the Post Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-9546. We
affirm.
On May 18, 2015, Watson shot and killed the victim. Following his
arrest, he was charged with first-degree murder and related charges. He
appeared for a jury trial on October 30, 2018. However, the jury could not
reach a unanimous verdict, and the trial court declared a mistrial. Prior to his
second trial, Watson filed a motion to proceed pro se, which the trial court
granted. The court appointed Watson’s counsel from his first trial as standby
counsel.
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Watson’s second jury trial commenced on April 29, 2019. Previously,
this Court reproduced the trial court’s detailed account of the evidence
presented at the second trial as follows:
On May 18, 2015, at approximately 10:12 p.m., [the victim]
was with his sister, Shaheen Ahmed, at her home on Allison Street
in Philadelphia. Before [the victim] left Ahmed’s home, he told
[Ahmed] he was “going to meet Dil and Master and Conestoga.”
Ahmed did not know Dil’s real name, but knew he was “Aaron’s
little brother, Leslie.” [Watson] whose legal name is Leslie
Williams, also lived on Allison Street. Both [Watson’s] and
Ahmed’s homes are about two blocks from the 1300 block of
Conestoga Steet, where [the victim’s] murder later occurred.
At approximately 11:41 p.m., on the 1300 block of
Conestoga Street, between Master and West Thompson Streets,
[Watson shot the victim] eighteen times, killing him. Within
seconds of hearing the gunshots, Philadelphia Police Officers
Michael Carey and Michael Paige arrived at the crime scene, where
[the victim] was lying on his back with no sign of life. They
observed multiple fired cartridge casings []. [The victim] who
suffered from multiple gunshot wounds to the chest, was
pronounced dead at the scene. The officers secured the crime
scene and waited for the other responding officers to arrive.
Philadelphia Police Officers Andre Dunkley and Marvin
Wilkins arrived to the scene about one minute after Officers Carey
and Paige. Officer Dunkley observed the 18 [fired cartridge
casings] on the ground trailing from [the victim’s] body, in the
middle of the block, to the rear of a silver Buick Enclave that was
parked at the end of the block, near the corner of Conestoga and
West Thompson Street. When looking inside the passenger side
window, Officer Dunkley saw a silver handgun with a black handle
and the slide locked back. At 12:40 a.m., the Philadelphia Crime
Scene Unit arrived and recovered all 18 [fired cartridge casings]
from the street, [the victim’s] cell phone, and a 9 millimeter
[R]uger handgun from the car.
Around 2:45 a.m., Officer Wilkins, who remained at the
scene to guard the Buick, observed a [Nissan] car pull up to the
corner of Conestoga and West Thompson Streets. Quinn Wise got
out of the car, walked towards the Buick and attempted to open
the front driver’s side door. When stopped by officers, Wise
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claimed it was her vehicle. When questioned by detectives at the
Homicide Unit, Wise stated that her daughter’s father, [Watson],
told her that the vehicle was on Conestoga Street and asked her
to go get it for him. A swab of Wise’s DNA was taken.
Keith Schofield arrived in the Nissan with Wise. During an
interview with Homicide Detectives, Schofield told detectives that
earlier in the evening, he was near Fairmount Park on Kelly Drive
with Diashauna Coleman. At approximately 1:34 a.m., after
Schofield drove Coleman home, he returned to a missed call from
[Watson]. [Watson] asked Schofield to meet him on Master Street
between 52nd and 53rd Street. When Schofield arrived, [Watson]
proclaimed, “I f***ed up . . . I might have f***ed up.” [Watson]
then instructed Schofield to take Wise to get the car from
Conestoga Street. Schofield identified [Watson] in a photograph
as the individual that told him to retrieve the car.
The Homicide Unit focused their investigation on [Watson].
On November 20, 2015, in an attempt to locate [Watson] and
obtain his DNA, Philadelphia Detective Joseph Bamberski and
Untied States Marshals Fugitive Task Force Agent Timothy
Stevenson went to 1336 N. Allison Street, [Watson’s] approved
parole residence. [Watson’s] mother and brother, Aaron Williams,
indicated that [Watson] was not home. On November 23, 2015,
Detective Bamberski and Agent Stevenson went back to
[Watson’s] address, and were again unsuccessful in locating him.
On February 24, 2016, [Watson] was located by Detective
Bamberski and Agent Stevenson at an apartment on the 5100
block of Regent Street in Philadelphia, In furtherance of their
investigation, [Watson] was brought to the Homicide Unit for
questioning and a buccal swab.
A search of [Watson’s] cell phone [] revealed that on
November 21, 2015, [Watson] had taken a screenshot of a
conversation in which he was discussing the United States
Marshals waiting outside his home with a search warrant. On
November 27, 2015, [Watson] downloaded a PDF of the “Most
Wanted” list from the Pennsylvania State Police website.
Detective [James] Dunlap reviewed the phone records for
[Watson’s] phone number and discovered that on the night of the
murder between 10:01 p.m. and 1:53 a.m., [Watson’s] phone was
within the geographical area of the crime scene.
Brittany Rehrig, a forensic scientist at the Philadelphia
Forensic Lab, conducted DNA analysis of the handgun and the
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Buick. [Watson’s] DNA was found on the handgun’s slide, grip,
and trigger, and the Buick’s steering wheel. Wise’s DNA was
detected as a major source on the handgun’s magazine. Her DNA
was also found on the gearshift and radio control area. The results
for [Watson’s] DNA on the front and rear driver’s side door
handles, magazine, gearshift, and radio control area were
determined to be inconclusive, but his DNA was not excluded as a
source. A defense expert, Katherine Cross, concurred with
Rehrig’s overall conclusions that [Watson’s] DNA was present as
a major source on the handgun. On December 13, 2016, after
[Watson’s] DNA was confirmed as a match, an arrest warrant was
prepared.
According to Police Officer Kelly Walker, an expert in the
Firearms Identification Unit, all 18 [cartridge casings] were fired
from the same handgun, the 9mm Ruger recovered from the
Buick. The firearm was capable of holding 18 bullets, 17 in the
magazine and one in the chamber.
At trial, the Commonwealth presented a Certificate of Non-
Licensure showing that on May 18, 2015, [Watson] was not
licensed to carry a firearm.
[In his defense, Watson] presented two lifelong friends as
witnesses, Joshua Edwards and Bayyan Finney, who attempted to
provide an alibi defense. Finney, who was in custody at the time
of trial, also testified that the night before his testimony, he made
a phone call to his friend, “Mock,” who was on the phone with
[Watson] at the time of his call. Mock put Finney on speakerphone
so the three of them could have a conversation. [Watson] asked
Finney to trade shoes with him before court, because Finney had
dress shoes, and [Watson] did not want to wear his Reebok Classic
sneakers to trial. During cross-examination, Finney denied that
[Watson] attempted to bribe him with a new pair of shoes in
exchange for his testimony.
Commonwealth v. Watson, 240 A.3d 906 (Pa. Super. 2020), non-
precedential decision at 2-5).
On May 3, 2019, the jury convicted Watson of all charges. That same
day, the trial court sentenced him to an aggregate sentence of life in prison
without parole. Watson filed a timely post-sentence motion, which the trial
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court denied on May 13, 2019. Watson appealed, raising four issues, including
a challenge to the sufficiency of the evidence supporting his convictions. On
September 4, 2020, we rejected Watson’s claims and affirmed his judgment
of sentence. Watson, supra. On March 31, 2021, our Supreme Court denied
Watson’s petition for allowance of appeal. Commonwealth v. Watson, 251
A.3d 780 (Pa. 2021).
On September 2, 2021, Watson filed a pro se PCRA petition and the
PCRA court appointed counsel. On October 13, 2021, PCRA counsel filed a
“no-merit” letter and motion to withdraw pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) (en banc). On October 14, 2021, the PCRA court issued
Pa.R.Crim.P. 907 notice of its intent to dismiss Watson’s petition without a
hearing.
On November 29, 2021, Watson filed a response to the court’s Rule 907
notice in which he claimed that PCRA counsel was ineffective for not filing an
amended petition and claimed that the trial court’s April 27, 2019, waiver-of-
counsel colloquy was defective.
Thereafter, the PCRA court permitted PCRA counsel to withdraw and
appointed replacement counsel to conduct an independent investigation of
Watson’s claims. On January 20, 2022, replacement counsel filed a
Turner/Finley “no-merit” letter and motion to withdraw. That same day, the
PCRA court issued another Rule 907 notice of its intent to dismiss Watson’s
petition without a hearing. The PCRA court granted Watson’s motion for an
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extension of time in which to file a response. Watson filed his response on
February 7, 2022. By order entered February 24, 2022, the PCRA court
permitted new counsel to withdraw and denied Watson’s petition.1 This appeal
followed. Both Watson and the PCRA court have complied with Pa.R.A.P.
1925.
Watson raises the following five issues on appeal:
I. Did the PCRA court err, in its finding that there was
no merit in [Watson’s] claim, that direct appeal
counsel was ineffective for failing to preserve the
claim that [Watson’s] waiver of counsel was invalid
and PCRA counsel was ineffective for failing to raise
the claim of ineffective assistance of direct appeal
counsel in that regard.
II. Did the PCRA court err, in its finding that there was
no merit tin [Watson’s] claim, that direct appeal
counsel was ineffective in the manner by which he
litigated [Watson’s] claim of insufficient evidence to
support the conviction and PCRA counsel was
ineffective for failing to raise the claim of ineffective
assistance of direct appeal counsel in that regard?
III. Did the PCRA court err, in its finding that there was
no merit in [Watson’s] claim, that direct appeal
counsel was ineffective for failing to raise the claim of
abuse of discretion, where the trial court denied
[Watson’s] request for a mistrial after a witness’s
prejudicial comments and PCRA counsel was
ineffective for failing to raise the claim of ineffective
assistance of direct appeal counsel in that regard?
IV. Did the PCRA court err, in its finding that there was
no merit in [Watson’s] claim, that direct appeal
____________________________________________
1Review of the docket in this case reveals the PCRA court entered a second
order dismissing Watson’s petition on February 28, 2022. While it is unclear
why this order was necessary, Watson has timely appealed from either date.
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counsel was ineffective for failing to preserve the
claim of judicial impropriety, where the trial court
adopted a prosecutorial function and PCRA counsel
was ineffective for failing to raise the claim of
ineffective assistance of direct appeal counsel in that
regard?
V. Did the PCRA court err, in its finding that there was
no merit in [Watson’s] claim, that direct appeal
counsel was ineffective for failing to raise the claim of
abuse of discretion, where the trial court allowed a
witness to testify after she previously heard the
testimony of all the other witnesses and PCRA counsel
was for failing to raise the claim of ineffective
assistance of direct appeal counsel in that regard?
Watson’s Brief at 4-5.
This Court’s standard of review for an order dismissing a PCRA petition
is to ascertain whether the order “is supported by the evidence of record and
is free of legal error. The PCRA court’s findings will not be disturbed unless
there is no support for the findings in the certified record.” Commonwealth
v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013) (citations omitted).
The PCRA court has discretion to dismiss a petition without
a hearing when the court is satisfied that there are no
genuine issues concerning any material fact, the defendant
is not entitled to post-conviction collateral relief, and no
legitimate purpose would be served by further proceedings.
To obtain a reversal of a PCRA court’s decision to dismiss a
petition without a hearing, an appellant must show that he
raised a genuine issue of material fact which, if resolved in
his favor, would have entitled him to relief, or that the court
otherwise abused its discretion in denying a hearing.
Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014) (citations
omitted).
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To be eligible for post-conviction relief, a petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from one or more of the enumerated errors or defects in 42 Pa.C.S.A.
section 9543(a)(2), and that the issues he raises have not been previously
litigated or waived. Commonwealth v. Carpenter, 725 A.2d 154, 160 (Pa.
1999). An issue has been "previously litigated" if the highest appellate court
in which the petitioner could have had review as a matter of right has ruled
on the merits of the issue, or if the issue has been raised and decided in a
proceeding collaterally attacking the conviction or sentence. Carpenter, 725
A.2d at 160; 42 Pa.C.S.A. § 9544(a)(2), (3). If a claim has not been
previously litigated, the petitioner must then prove that the issue was not
waived. Carpenter, 725 A.2d at 160. An issue will be deemed waived under
the PCRA “if the petitioner could have raised it but failed to do so before trial,
at trial, during unitary review, on appeal, or in a prior state post-conviction
proceeding.” 42 Pa.C.S.A. § 9544(b).
In each of his appellate issues, Watson raises a layered claim of
ineffectiveness. As part of these assertions, Watson alleges the ineffective
assistance of PCRA counsel for the first time on appeal pursuant to
Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021). To obtain relief under
the PCRA premised on a claim that counsel was ineffective, a petitioner must
establish, by a preponderance of the evidence, that counsel's ineffectiveness
so undermined the truth-determining process that no reliable adjudication of
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guilt or innocence could have taken place. Commonwealth v. Johnson, 966
A.2d 523, 532 (Pa. 2009). “Generally, counsel’s performance is presumed to
be constitutionally adequate, and counsel will only be deemed ineffective upon
a sufficient showing by the petitioner.” Id. This requires the petitioner to
demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel
had no reasonable strategic basis for his or her action or inaction; and (3)
counsel’s act or omission prejudiced the petitioner. Id. at 533.
In making a layered claim of ineffectiveness, a PCRA petitioner “must
properly argue each prong of the three-prong ineffectiveness test for each
separate attorney.” Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa.
Super. 2012). “In determining a layered claim of ineffectiveness, the critical
inquiry is whether the first attorney that the defendant asserts was ineffective
did, in fact, render ineffective assistance of counsel.” Commonwealth v.
Burkett, 5 A.3d 1260, 1270 (Pa. Super. 2010). “If that attorney was
effective, then subsequent counsel cannot be deemed ineffective for failing to
raise the underlying issue.” Id.Here, the PCRA court has authored a thorough and well-reasoned
opinion pursuant to Rule 1925(a). The Honorable Barbara A. McDermott has
addressed each of Watson’s layered ineffectiveness claims with proper citation
to legal authorities and citation to the certified record. In addition, she has
explained why an evidentiary hearing was not necessary before disposing of
Watson’s ineffectiveness claims.
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We discern no legal errors in Judge McDermott’s analysis, and we find
her factual findings and credibility determinations fully supported by our
review of the record. As such, we adopt Judge McDermott’s 1925(a) opinion
as our own in affirming the order denying Watson’s post-conviction relief. See
PCRA Court’s Opinion, 2/24/22, at 14-17 (explaining that because Watson’s
waiver of counsel colloquy was sufficient, appellate counsel cannot be
ineffective for failing to object and preserve the issue for appeal; PCRA counsel
cannot be found ineffective for failing to assert meritless claims); at 7-9
(rejecting Watson’s layered claim of ineffectiveness because, although this
Court found Watson’s Rule 1925(b) statement deficient, the court
nevertheless ruled on the merits that there was sufficient evidence to support
each of Watson’s convictions; Watson’s claim that counsel should have argued
the “equipoise” principle fails because nothing in the record indicated that “two
contrary interpretations of evidence could have been presumed by the jury’);
at 9-10 (explaining that Watson’s claim of improper admission of prior bad act
evidence was previously litigated on direct appeal; nonetheless, because
Watson’s claim is based on “a complete misstatement” of the challenged
testimony, Watson’s layered ineffectiveness claim fails); at 11-13 (explaining
that Watson’s claim of judicial impropriety was waived for lack of objection at
trial and was otherwise without merit; Watson’s layered ineffectiveness claim
failed because the trial court did no more than ask the witness to clarify her
answer); and 10-11 (rejecting Watson’s layered ineffectiveness claim
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concerning testimony at his second trial from the victim’s sister; no
sequestration violation occurred because the sister did not testify at Watson’s
first trial, and she was properly sequestered for the second trial).2
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/27/2023
____________________________________________
2The parties are directed to attach Judge McDermott’s February 24, 2022,
opinion to this memorandum in any future appeal.
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Circulated 02/28/2023 10:42 AM
IN THE COU11T OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
COMMONWEALTH Or PENNSYLVANIA :CP-51-CR 0001353-2017
v,
FILED
ALEX WATSON, FEB 2
142022
PCRA Unit
Petitioner CP Criminal Listings
ORDER AND OPINION
McDermott, J. February 24, 2022
Procedural History
On December 19, 2016, the Petitioner, Alex Watson, was arrested.and charged with
Murder and related offenses. On October 29,.2018, the Petitioner appeared before this Court and
elected to proceed with ajury trial. On November 6, 2018, the jurors were unable to reach a
unanimous verdict, and this Court declared amistrial. On March.7, 2019, the Petitioner filed a
Motion to Proceed prase. On April 29, 2019, this Court granted the Petitioner's Motion and
permitted him to represent himself.'
On May 3, 201.9, ajury.convicted the Petitioner of First-Degree Murder, Firearms Not to
be Carried Without aLicense ("VUFA 6.106"), Carrying aFirearm on the Public Street in
Philadelphia ("VUFA 6108"), and Possessing an Instrument of Crime ("PIC" ): This Court
immediately imposed the mandatory sentence of life imprisonment for rust -
Degree Murder,
concurrent; terms of three to six years imprisonment for VUFA 6106, and one to two years
imprisonment for VUFA 61.08, for atotal sentence of life imprisonment 2That same day, this
IThis Court appointed standby counsel.
2This Court itnposed no further penalty for PIC.
1
Court appointed standby counsel, James F. Berardinelli, as appellate counsel because the
Petitioner did not want to represent himself on appeal.. On May 10, 2019, counsel filed aPost-
Sentence, Motion, which this Court denied on May 13, 2019.
On June 7, 2019, the Petitioner. filed aNotice of Appeal and the Superior Court affirmed
his judgment of sentence on September 4, 2020. On March 31, 2021, the Supreme Court of
Pennsylvania denied his Petition for Allowance of Appeal.
On.September 9, 2021, the Petitioner filed.a pro se Post-Conviction Relief Act ("PCRA")
petition, his first. On September 10, 2021, this Court appointed George S. Yacoubian, Jr. as
PCRA counsel. On October 13, 2021, appointed PCRA counsel filed ano-merit letter pursuant.to.
Commonivealth tip. Finley;550 A.2d 213 (Pa, Super. 1988), On October 14,.2021, this Court filed
aNotice of Intent to Dismiss pursuant to Pa.R.Crim.P. 907.
On November 29, 2021, the Petitioner filed an Objection to the 907 Notice raising claims
that PCRA counsel was ineffective for not filing an :Amended, Petition and. that this Court's April
27, 2019 colloquy was defective. This Court appointed Gary S. Server as PCRA counsel to
conduct an independent investigation of the Petitioner's claims, On January 20, 2022,
replacement PCRA counsel filed ano-merit letter, That same day, this Court filed aNotice of
Intent to Dismiss pursuant to Pa.R.Crim.P. 907. On February 2, 2022, after he filed aMotion for
an Extension of Time, this Court granted the Petitioner an additional twenty days to file
- an
objection,. On February 7, 2022, the Petitioner filed an Objection to this Court's 907 Notice. On
February 8, 2022, the Petitioner attempted ₹ofile apro se Amended PCRA Petition a
The claims raised in the Petitioner's pro se Amended PCRA Petition are essentially the same as those raised in his
initial.pro se PCRA petition, his November 29, 2021 Objection, and his `February 7, 2022 Objection.
2
Facts
In its September 4, 2020, Opinion, the Superior Court adopted this Court's summary of
the facts in part and recited them as follows:
On May 18, 2015, at approximately 10:12 pm., Victirn Was
with his sister, Shaheen Ahmed, at her home on Allison Street in
Philadelphia. Before the Victim left Ahmed's home, he told her he
was "going to meet Dil at Master and Conestoga.." Ahmed did not
know Dil's real name, but knew he was "Aaron's little brother,
Leslie." Petitioner, whose legal name is Leslie Williams, also lived
on Allison Street, Both Petitioner and Ahmeds' homes are about
two blocks from the 1300 block of Conestoga Street, where the
Victim's murder later occurred.
At approximately 1.1:41 p,m., on the 1300 block of
Conestoga Street, between Master and West Thompson Streets,
Petitioner shot Victim eighteen times, killing him. Within seconds
of hearing the gunshots, Philadelphia Police Officers Michael
Carey and Michael Paige, arrived at the crime seen, where the
Victim was lying on his back with no. sign of life. They observed
multiple fired cartridge. casings. Victim, who suffered from
multiple gunshot wounds to the chest, was pronounced dead at the
scene. The officers secured the crime scene and waited for the
other responding officers to arrive.
Philadelphia Police Officers Andre Dunkley and Marvin
Wilkins arrived at the scene about one minute after Officers Carey
and Paige. Officer Dunkley observed the 18 fired cartridge casings
on the ground trailing from the Victim's body, in the middle of the
block, to the rear of asilver Buick Enclave that was parked at the
end of the block, near the corner of Conestoga and West
Thompson Street. When looking inside the passenger side window,
Officer Dunkley saw asilver handgun with ablack handle and the,
slide locked back. At 12:40 a.m., the Philadelphia Crime Scenc
Unit arrived and recovered all 18 fired cartridge casings from the
street, the Victim's cell phone, and a9millimeter Ruger handgun
from the car.
Around 2:45 a.m., Officer Wilkins, who remained at the
scene to guard the Buick, observed aNissan car pull up to the
corner of Conestoga and West Thompson Streets. Quinn Wise got
out of the car, walked towards the Buick. and attempted to open the
front driver's side door. When stopped by officers, Wise claimed it
was her vehicle. When questioned by detectives at the Homicide
Unit, Wise stated that her daughter's father, Petitioner, told her that.
the vehicle was on Conestoga Street and asked her to go get it for
him. A swab of Wise's DNA was taken.
3
Keith Schofield arrived in the Nissan with Wise. During an
inteiview with Homicide Detectives, Schofield told detectives that
earlier in the evening, he was near Fairmount Park on Kelly Drive
with Diashauna Coleman. At approximately 1:34 a.m., after
Schofield drove Coleman home, he returned amissed call from
Petitioner. Petitioner asked Schofield to meet him on Master Street
between 52n d and 53Td Street. When Schofield arrived, Petitioner
proclaimed, "If# * * ed up ... Imight have f* * $ ed up.' ,'Petitioner
then instructed Schofield to take Wise to get the car from
Conestoga Street. Schofield identified Petitioner in aphotograph as
the individual that told him to retrieve the car.
The Homicide Unit focused their investigation on
Petitioner. On November 20, 2015, in an attempt to locate
Petitioner and obtain his DNA,, Philadelphia Detective Joseph
Bamberski and United States Marshals Fugitive Task Force Agent
Timothy Stevenson went to 1336 N, Allison Street, the Petitioner's
approved parole residence. Petitioner's mother and brother, Aaron.
Williams, indicated that Petitioner was not home. On November
23, 2015, Detective Bamberski and Agent Stevenson went back to
Petitioner's address, and were again unsuccessful in locating him.
On February 24, 2016, Petitioner was located by Detective
Bamberski and Agent Stevenson at. an apartment on the 5100 block
of Regent Street in Philadelphia. In furtherance of their
investigation, Petitioner was brought to the Homicide Unit for
questioning and a. buccal swab.
A search of the Petitioner's cell phone revealed.that on
November 21, 201.5, Petitioner had taken ascreenshot of a
conversation in which he was discussing the United States
Marshals waiting outside. his home with asearch warrant. On
November 27, 2015, Petitioner downloaded aPDF of the "Most
Wanted" list from the Pennsylvania State Police website.
Detective James Dunlap reviewed the phone records for
Petitioner's phone number and discovered that on. the night of the
murder between 1.0;01 p.m. and 1:53 a.m., the Petitioner's phone
was within the geographical area of the crime scene.
Brittany Rehrig, aforensic scientist at the Philadelphia
Forensic Lab, conducted DNA analysis of the handgun and the
Buick. Petitioner's DNA was found on the handgun's slide, grip,
and trigger, and the Buick's steering, wheel. Wise's DNA was
detected as amajor source on the handgun's magazine. Her DNA
was also found on the gearshift and radio control area. The results
for Petitioner's DNA on the front and rear driver's side door
handles, magazine, gearshift, and radio control area were
determined to be inconclusive, but his DNA was not excluded as a
source. A defense expert, Katherine Cross, concurred with
Rehrig's overall conclusions that Petitioner's DNA was present as
amaj or source on the handgun. On December 13, 2016, after
4
Petitioner's DNA was confirmed. as amatch, an arrest warrant was
prepared.
According to Police Officer, Kelly Walker, an expert in the
Firearms Identification Unit, all 18 fired cartridge casings were
fired from the same handgun, the 9mm Ruger recovered. from the
Buick. The firearm was capable of holding 18 bullets, 17 in the
magazine and one in the chamber.
At trial, the Commonwealth presented aCertificate of Non-
Licensure showing that on May 18, 201.5, Petitioner was not
licensed to carry afirearm.
Petitioner, presented two lifelong friends as witnesses,
Joshua Edwards and Bayyan Finney, who attempted to provide an
alibi defense. Finney, who was in custody at the time of trial, also
testified that the night before his testimony, he made aphone call
to his friend, "Mock," who was on the phone with Petitioner at the
time of his call. Mock put Finney on speakerphone so the three of
them could have aconversation. Petitioner asked Finney to trade
shoes with him before court, because Finney had dress shoes, and
Petitioner did not want to wear: his Reebok Classic sneakers to
trial. During cross-examination, Finney denied that Petitioner:
attempted to bribe him with anew pair of shoes in exchange for his
testimony at trial.
Commonwealth v. Watson, No. 1694 EDA 2019 at *2-5 (September 4, 2020) (non-precedential
decision) (internal brackets and footnotes omitted).
Discussion
In his PCRA Petition, the Petitioner raises four issues for review, that appellate counsel
was ineffective for not: ( 1) properly developing his sufficiency claim and not arguing the
"equipoise principal" on appeal; (2) properly developing his claim of improper admission of his
prior bad act; (3) appealing this Court's ruling to allow awitness to testify who the Petitioner
alleges violated the. sequestration order,• and, (4) appealing this Court's discretion to question a
witness, Quinn Wise ("Wise") .4
4Petitioner's claim of ineffectiveness regarding appellate counsel's failure to properly develop his claim of improper
admission of his prior bad act was not included his pro se PCRA petition filed on September 2, 2021, but was
subsequently raised in letters with his initial PCRA counsel and was addressed in his initial PCRA counsel's Finley
letter,
5
This Court must first address the timeliness of the instant petition before reaching the
merits of the Petitioner's claims. A PCRA petition must be filed within. one, year of the date the
Petitioner's judgment of sentence becomes final, unless one of three delineated timeliness
exceptions are met. 42 Pa.C.S. § 9545(b)(1), Ajudgment becomes final at the conclusion of
direct review, or at the expiration of the time for seeking review. 42 Pa. C.S. § 9545(b)(3). A final
order of the Superior Court is any order that concludes an appeal, and aPetition for Allowance of
Appeal with the. Supreme Court of Pennsylvania must be filed within thirty days after the entry
of the Superior Court. Order. Pa.R.A.P. 1112, Pa.R.A.P. 1113. A petition for awrit of certiorari
seeking review of ajudgment from alower state court is timely when it is filed within ninety
days after the entry of the order denying discretionary review. U.S.Sup.Ct.R. 13.
The PCRA time requirement is jurisdictional in nature, and atrial court cannot. ignore it
to reach apetition's merits. Commonwealth v. Anderson, 234 A.3d 735, 736 (Pa. Super. 2017)
(citing CorninonNJealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010)).
This Court finds that the. instant petition.is timely. The Petitioner's judgment of sentence
became final on rune 29, 2021, when the ninety-day period to seek apetition fora iirit of
certiorari with the United States Supreme Court expired. The Petitioner had one year from that
date to bring atimely PCRA claim. The. instant petition was filed. on September 2, 2021;
therefore, the instant petition is timely.
Defendants• who represent themselves are not entitled to relief under the PCRA for claims
of ineffective assistance based on their own failure, or that of standby counsel, at trial.
Cornnionwealth v. Fletcher, 986 A.2d 759,374 (
Pa. 2009). Therefore, the. Petitioner's decisionto
waive his right to counsel and represent himself at trial precludes any of the Petitioner's claims
alleging his own ineffectiveness or that of standby counsel.
6
To obtain relief on claims of ineffective assistance of counsel, apetitioner must satisfy
the performance and prejudice test announced in Strickland v. Washington, 104 S. Ct. 2052
(1984). Commonwealth v, Montalvo, 205 A,3d 274,286 (Pa. 2019). In Pennsylvania, courts
apply the Strickland test by examining whether; (1) the underlying claim has arguable merit; (2)
counsel lacked areasonable basis for his actions or failure to act; and, (3) the petitioner was
prejudiced by counsel's deficient performance such that there is areasonable probability that the
result of the. proceeding would have been different absent counsel's error or omission, Id. (Citing
Commonwealth v. Pi.'erce,, 527 A.2d 973, 975 (Pa. 1987)): A petitioner's failure to satisfy any
prong. of this three-part ineffectiveness test is fatal to the claim. Commonwealth Y, Wholaver, 177
A.3d 13.6, 144 (Pa. 2018). Courts are not required to analyze the elements of an ineffectiveness
claim in any particular order; if aclaim fails under any prong of the ineffectiveness test, acourt
may proceed to that element first. Commonwealth v, Sepulveda, 55 A.3d 1108, 1.117--18 (Pa.
2012).
To succeed on. astand-alone claim of appellate counsel ineffectiveness, "aPCRA
petitioner must demonstrate that appellate counsel was ineffective in the manner by which he
litigated. the claim on appeal." Commonwealth v. Koehler, 36 A.3d 121, 142 (Pa. 2012). A
petitioner must establish exactly how appellate counsel was ineffective either "by offering
additional evidence or controlling authority, missed by direct appeal counsel, that would have
changed the appeal outcome; or by specifically alleging the winning claim or distinct legal
theory that appellate counsel failed to recognize; and then by showing how the appeal, as
pursued, was incompetent by comparison." Id- (citing Commonwealth v.. Paddy, 15 A.3d 431,
476 (Pa, 2011)).
The Petitioner's claim that appellate counsel was ineffective: for failing to properly
develop his sufficiency claim fails. The Petitioner claims appellate counsel was ineffective for
7
failing to specify in his 1925(b) Statement which elements of the crimes were insufficiently
proven at trial. The. Petitioner also claims his initial PCRA counsel was ineffective for failing to
raise aclaim that appellate counsel was ineffective: for waiving his. sufficiency arguments on
direct appeal.
On direct appeal, the Petitioner's claim regarding the sufficiency of the evidence was
addressed and rejected by the Superior Court. See Commonwealth v. Watson, No. 1694 EDA
2019 at * 8-10 (September 4, 2020) (non-precedential decision). Whilethe Superior Court did
find the Petitioner's 1925(b) Statement deficient, the Superior Coui L, ruled on the merits and
agreed with this. Court that there was sufficient evidence to support each of the Petitioner's
convictions. Id.Both initial PCRA counsel and subsequent PCRA counsel. addressed the Petitioner's
ineffectiveness claim regarding appellate counsel's lack. of specificity in. developing Petitioner's
sufficiency claim in their Tinley letters and concluded Petitioner's claim had no merit. Initial
PCRA counsel found, and this Court agrees, that appellate counsel's failure to properly develop
Petitioner's sufficiency of the evidence claim does not amount to ineffective assistance because
the Commonwealth established each of the elements of the charged offenses beyond areasonable
doubt,at trial and there was no plausible sufficiency claim which could be made by appellate
counsel, Replacement PCRA counsel determined that Petitioner's sufficiency claim was not
waived due to appellate counsel's lack of specify and neither prior counsel. was ineffective
because no plausible sufficiency claim could. be made.
The Petitioner argues that both appellate counsel and initial PCRA counsel were
ineffective for failing to argue the."equipoise principal." The "equipoise principal" holds that if
the evidence presented by the Commonwealth to establish adefendant's guilt is equally
consistent with adefendant's innocence, then there is insufficient evidence to sustain the verdict.
8
Commonwealth v. Garcia, 251 A.3d 1225, * 7 (Pa. Super. March 11, 2021) (unreported
memorandum) (citing Commonwealth v. Tribble, 467 A.2d 1130 (Pa. 1983)). Nothing in. the
record indicates that two contrary. interpretations of evidence could have been presumed by the
jury. The Petitioner has not offered any additional evidence or controlling authority which would
have changed. the appeal outcome or alleged a. legal theory that appellate counsel failed to
recognize.
Petitioner claims that appellate counsel was ineffective for failing to properly develop on
direct appeal his claim of improper admission of his.pdor bad act and the denial of his request
for amistrial. Petitioner claims that when. Agent Stevenson visited his registered address on
November 20, 2015, Agent Stevenson. was merely attempting to arrest him because he violated
his parole when he failed to notify his parole agent of his change in address. Petitioner further
claims that since Agent. Stevenson was trying to arrest him in an unconnected matter, it cannot be
used to show evidence of flight and improperly implied to the jury that he committed aprior bad
act with his violation. of parole.
Petitioner's argument that this Court: erred in admitting the testimony of Agent. Stevenson
regarding the Petitioner's parole status has already been rejected by the Pennsylvania Superior
Court on direct appeal. See Commonwealth v. Watson, No. 1694 EDA 2019 at * 13,-17
(September 4, 2020) (icon-precedential decision), As this claim has already been previously
litigated on direct appeal, it cannot be raised again in aPCRA petition. See. Connnonwealth v.
Chmiel, 30 A.3d l11.1, 1127 (Pa. 2011) (To succeed on collateral review, the petitioner must
show that. his claims were. not previously waived or litigated),
Petitioner's claim also fails as he completely misstates Agent 9tevenson's testimony
because Agent Stevenson went to the Petitioner's address to effectuate a.DNA search warrant for
this case. N.T. 5/1/2019 at 39. At trial, Agent Stevenson described the efforts to locate the
9
Petitioner. Id. at 40-41. Although Agent Stevenson's testimony did imply to the jury that the
Petitioner committed aprior bad act, the details of the Petitioner's prior bad act were never
introduced: The jury was aware of nothing more than the Petitioner's parole status, which was
relevant to thepolice investigation and the location of the Petitioner. This Court also provided a
cautionary jury instruction to ensure that the jury consider the evidence only for lawful purposes,
Since the Petitioner's claim is based on. acomplete misstatement: of the facts and appellate
counsel. cannot. be held ineffective for failing:to raise frivolous claims and this Court could not
have erred when it denied his request for amistrial, the Petitioner's claim fails.
During the Petitioner's mistrial, Shaheen Ahmed, the decedent's sister, was present for
testimony because she was not listed by either side as apotential witness. N.T. 4/
29/,19 at 183.
After the mistrial, Ahmed approached the Assistant District Attorney because she recognized her
phone number in the Commonwealth's exhibits.. Id. at 186-188. During the instant trial,, after
being sequestered and over the Petitioner's objection, this Court allowed Ahmed to testify that
on the night the decedent died, he used her cell phone to call the Petitioner. N.T. 5/02/2019 at .,26-
38. This testimony was supported by her cell and house phone records. Before her testimony, this
Court gave the following cautionary instruction:
Now, members of the Jury, there was aprior proceeding in
this case and in that prior proceeding Ientered a. sequestration
order like Idid two days ago, maybe three days ago now, saying
that no witnesses could be present in the courtroom to hear the
testimony of another witness. And the purpose of the sequestration
order, Idon't know if I've explained that to. you in the past, but it's
to prevent the testimony of one witness from influencing the
testimony of another witness. Now, Iwant you to know that
Shaheen Ahrned was not listed by either side as apotential witness
during that hearing and she was present. Ibelieve you're going to
bear that she is the decedent's sister, so she was present during the
testimony of other witnesses. Now I'm telling you. this because in
evaluating her credibility of her testimony which is just coming up,
you may consider the fact that she was in the courtroom at aprior
proceeding and may have heard other witnesses testify. Idon't
think anyone knows exactly how long she was in the courtroom or
10
what she heard, but there is an agreement, am Icorrect, that she
was present. in the courtroom for at least part of the prior
proceeding. So, Ijust wanted to let you know about that before ,you
hear her testimony. Is that satisfactory, Mr. Watson?
Id. at 23-24. In response, the. Petitioner said "
Yes, Your Honor, thank you . " Id.
The Petitioner's claim that appellate counsel was ineffective for failing to appeal this
Court's ruling to allow Ahmed to testily fails. Since. Ahmed was not awitness in.the mistrial and
was properly sequestered for the second. trial, she did not violate any sequestration order. Ahmed
gave very limited, record supported testimony regarding the phone call the decedent inade and
her conversation with the decedent. In an abundance of caution, this Court gave acautionary
instruction that informed the jury about Ahmed's presence at aprevious hearing. Jurors are
presumed to follow the court's instructions. Cornnzonwealth. v. Rose 172 A.3d 1121 (Pa. Super.
2017). The Petitioner did not object to the cautionary instruction and agreed that the instruction
was sufficient. Therefore, by failing to object, the. Petitioner has waived this claim. See Pa.R.A.P..
302(x),
Even if there had been aviolation of asequestration order, the remedy for aviolation of a
sequestration order is within the sound discretion of the trial court, and in exercising its
discretion, the court considers the seriousness of the violation, its impact on the testimony of the
witness, and its probable impact on the outcome of the trial, Rose, 172 A.3d at 1131 (citing
Connnonwealth v. Smith, 346 A.2d 757, 760 (Pa. 1975)). The trial court's exercise of discretion
should only be disturbed if there is no reasonable ground for the action. taken. Id. There are
reasonable grounds for this Court's chosen remedy and appellate counsel cannot be held
ineffective for failing to raise afrivolous claim. Conzrnonwealth v. Plerce, 645 A, 24 189, 194
(Pa. 1994); Commonwealth v. Bickerstaff, 204 A.3d 988, 992 (Pa. Super. 2019).
Petitioner claims that appellate counsel was ineffective for failing to assert aclaim on
direct appeal that this Court abused its discretion to question Wise. The Petitioner's claim fails
11
because he did not'object to any of this Court's questioning at trial and, therefore, the issue has
been waived. Pa.R,A.P. 302(x). Since the Petitioner represented himself and was acting as his
own trial counsel, he cannot allege his own ineffectiveness for failing to object and preserve the
issue.
Even:if Petitioner's claim was not waived, the claim.would still fail. because, pursuant to
Pennsylvania Rule of Evidence 614, the trial court may examine awitness when the interest of
justice so requires. The trial court has.a duty to ask questions when "absurd, ambiguous, or
frivolous testimony is given or testimony is in need of further elucidation." Commonwealth v.
Smith, 245 A.3d 1120, * 6 (Pa. Super. December 31, 2020), re-argument denied (March 9, 202.1),
appeal denied, No., 175 MAL 2021, (Pa. Aug. 23, 2021) (
citing Commonwealth v.. Carson, 913
A.2d 220, 249 (Pa. 2006))..
On December 3, 2015, Wise called the Petitioner from prison. where they talked about
their child and the Petitioner hiding from law enforcement. At trial, the Commonwealth asked
Wise if she recognized her andethe Petitioner's voice. Wise claimed she only recognized her
voice and that the other voice was the voice of her friend, she identified as "William." N.T.
4/30/2019 at 130-133. Wise's claim was absurd and aclear attempt to protect the Petitioner,
Wise had already recanted her previous statement to police incriminating the Petitioner earlier on
in her testimony. This Court allowed the Commonwealth to play more portions of the. call to
prove the Petitioner's identity, including where they talk about their child and use terms of
endearment. This Court did not abuse its discretion when it asked Wise to clarify her testimony
about the identity of the individual on the call. Cotntnonwealth v, Carson, 913 A.2d 220 (
Pa.
2006) (Trial court did not abuse its discretion or show partiality when it questioned awitness on
his motives).
12
Additionally, the jury was well aware that this Court was not questioning Wise's
credibility because of this Court's introductory instruction. Before opening statements, this Court
gave the following instruction:
It's possible that on occasion, Imight ask some questions of
the witnesses myself. If Ido that, they will not -- my questions will
not reflect and are not intended. to reflect any opinion on my,part
aboutthe evidence or the case. My purpose. would be to inquire
about matters that Ithink should be more fully explored or
clarified for you.
N.T. 4129/2019 at 220-221. Jurors are presumed to follow the court's instructions, so the
Petitioner's claim fails. See Rose 172 A,3d at 1131-1132.. Appellate counsel cannot be held
ineffective for failing to raise afrivolous claim.. Pierce, 645 A.2d at 194; Bickerstaff, 204 A.3d at
992.
In his Objection to this Court's 907 Notice filed on, November 29, 2021, the Petitioner
asserted that: ( 1) this Court's April 29, 2019 colloquy was defective; (2) appellate counsel was
ineffective for not objecting to this Court's April 29, 2019 colloquy and preserving the issue for
appeal; and, (3) that PCRA counsel was ineffective for failing to raise the claims set forth in his
pro se PCRA Petition. In his February 7, 2022 Objection to the 907 Notice, the Petitioner raised
an additional claim that subsequent PCRA counsel, Attorney Server, was ineffective for not
filing an Amended Petition. On February 8,2022, the Petitioner attempted to file apro se
Amended PCRA Petition. 5
sThe Petitioner is not permitted to file aprose Amended Petition while still represented by counsel, without this
Court's perinission. See Commonwealth v: Glacken, 32 A.3d 750, 753 (Pa, Super. 2011) (quashing Appellant's pro
se PCRA petition where Appellant is represented by counsel even where Appellant's.counsel has not filed a
counseled PCRA petition); see also Corunromvealth v. Jette, 23 A.3d 1032, 1036 (Pa. 2011) (finding "arepresented
defendant on appeal has only two options: `( 1) waive counsel and proceed pro se; or (2) proceed with appellate
counsel and, if warranted, raise appellate counsel's supposed ineffectiveness at alater date, But ` the [one) thing be
may not do' is raise his own appellate claims while still represented by counsel."'); Commonwealth v. Ellis, 626
A.2d 1137 (Pa. 1993) (prohibiting the court korn accepting pro se filings by arepresented defendant in the interest
of promoting judicial economy in the appellate courts). Although the Petitioner's appointed counsel, Attorney
Server; line filed aMotion to Withdraw, this Court has not granted counsel's Motion and the Petitioner is still
currently represented by appointed counsel. The Petitioner is also not permitted to File an Amended PCRA petition
13
When adefendant elects to waive his right to representation, the trial court is required to
ensure that the waiver of counsel is knowing, voluntary, and intelligent. See Pa.R.Crirn.P.
121(A)(2); Commonwealth v. Spotz, 18 .A.3d 244, 263 (Pa. 2011); Commonwealth v. Phillips,
141 A.3d 512, 518 (Pa. Super. 20.16). To ensure adefendant is knowingly, voluntarily, and
intelligently waiving his right to counsel, acourt must conduct "apenetrating and comprehensive
colloquy." Comnzonivealth v. Phillips, 93 A.3d 847, 853 (Pa. Super. 2014). On April 29, 2019,
this Court conducted athorough colloquy, which establishes that the Petitioner's waiver of his
right to counsel was knowing, voluntary, and intelligent. This Court's April 29, 2019 colloquy
was sufficient as it properly advised the Petitioner of all of the elements required under
Pennsylvania Rule of Criminal Procedure 121.
First, this Court inquired into the Petitioner's Level of schooling, ability to read and write
English, access to the law library, history of mental illness, and if he was under the effect of any
medication that would interfere with his ability to understand the proceedings. N.T. 4/29/2019 at
6-7, 16. Next, this Court addressed each of the elements required under Rule 121(2). The
Petitioner was aware of his right to be represented by counsel as he expressly stated, "Iwish to
waive my right to assistance. of counsel." Id at 6. The Petitioner understood. the nature .and
elements of the charges as this Court stated the charges against him and the Petitioner again
rejected aplea offer by the Coininonwealth. Id. at 7, 16-17. The Petitioner was also aware of the
permissible range of sentences as this Court informed the Petitioner that he faced life
imprisonment without the possibility of parole if convicted of first-degree murder. Id at 7. Since
the Petitioner. has already had amistrial, he was aware of his possible defenses and arguments
while the initial PCRA is. pending without leave of court. ,
See Comnranvealth v. Porter, 35 A.3d 4,12 (Pa. 2012) (a
petitioner who wishes to amend apending PCRA petition trust first seek and obtain leave of court); see also
Pa.R:CrimA 905. The Petitioner never sought leave:of court to amend his initial pro se PCRA petition prior to filing
his Amended PCRA Petition on February 8, 2022.
14
such as the possibility o£ asecond shooter and the strength of the DN.A. evidence. The Petitioner
informed this Court that he knew which witnesses he intended to call and had decided not to
present the testimony of experts who conducted cell phone analysis. Id. at 9-13. Petitioner also
informed this Court that he knew how to pick ajury. Id. at 13. Standby Counsel, Attorney
Berardinelli, informed this Court that the Petitioner "know[s] the case inside and out as Ido." Id
at 8. The Petitioner understood that he would have to follow the Pennsylvania Rules of Criminal
Procedure, but could confer with standby counsel at the.appropriate times, Id. at 14-15. This
Court explained to the Petitioner that by representing himself and acting as his own trial counsel,
he loses the ability to claim that trial counsel was ineffective. Id.. at 7.
This Court's April 29, 2019 colloquy must be viewed in the context of the entire case.
Prior to the colloquy on April 29, 2019, there were two other occasions where this Court
conducted acolloquy of the Petitioner, On April 11, 201.8, this Court conducted acolloquy
wherein the Petitioner was advised of the nature and elements of the charges against him and the
range of sentences before rejecting aplea. Offer from the Commonwealth. After amistrial and
prior to his: subsequent trial, this Court conducted another colloquy on October 19, 2018, wherein
the Petitioner was again advised of the charges ..against him and the possible penalties he faced
before he rejected the Commonwealth's offer. The Petitioner stated that lie understood the
charges, the elements of those charges, and the permissible range of sentences because the
charges were defined at his mistrial and this Court reminded him about the mandatory sentence
at the colloquy. N.T, 11/5/2018 at 27-34; N.T. 4/29/2019 at 7.
This. Court's colloquy was not deficient and showed that the Petitioner.made aknowing,
voluntary, and intelligent waiver of counsel. See Commonwealth v. Blakeney, 946 A,2d 645,
655-656 (Pa. 2008) (Defendant made a.knowing and voluntary waiver of counsel after the trial
court's extensive colloquy); see also Commonwealth >>. Starr, 664 A.2d 1326, 1336 (Pa. 1995)
15
(Defendant's understanding of his right to, counsel was adequately shown through the
combination of two different colloquies).
In his Objection to this Court's 907 Notice filed February 7, 2022, the Petitioner cites
several cases in support of his claim. See Commonwealth v. Clybw-n, 42 A.3d 296 (Pa. Super..
20X2); Commonwealth v. Payson, 723 A.2d 695 (Pa. Super. 1999). Both Clybui-n and Payson
involved written waiver of counsel forms signed by the defendants which were found to be
insufficient in establishing aknowing, voluntary, and intelligent waives: of counsel without the
trial court conducting acomprehensive oral colloquy. In Clybww, the trial court had the
defendant sign awritten waiver of counsel form, simply asked if the defendant would be
representing himself, and had the assistant district attorney inform the defendant about the nature
of the charges and the permissible range of sentences. See Clybur-n, 42 A.3d at 301. In Payson,
the Superior Court found. that awritten waiver of counsel form signed before a.magistrate was
not applicable to awaiver of counsel during asubsequent guilty plea. Payson, 723 A.2d at 703-
04. The trial courts in Clyburn and Payson did not conduct a. probing colloquy on the record.
Unlike in Clyburn and Payson, this case does not involve asigned written waiver of counsel
without aprobing colloquy. This Court conducted an extensive colloquy on the record, which
properly advised the Petitioner of each of the elements under Rule 121.
Additionally, each of the cases cited by the Petitioner involved adefendant who raised an
insufficient colloquy claim on direct appeal. Here, the Petitioner failed to raise aclaim
challenging the sufficiency of this Court's colloquy on direct appeal and brings his claim in a
PCRA petition. As the Petitioner failed to raise this claim on direct appeal, the Petitioner's claim
alleging that the colloquy performed by this Court was defective has been waived. See
Commom4)ealth v. Yarbrough, 245 A.3d 1107 (Pa. Super. 2020) (Appellant waived nine of his
ten claims by failing to raise these claims on direct appeal even where he raised the issues in his
16
pro se post-verdict motions and he cannot overcome waiver by alleging his own, or stand-by
counsel's, ineffectiveness); 42 Pa.C.S.A. § 9544.
petitioner claims that appellate counsel was ineffective for failing to challenge this
Court's colloquy at the time it occurred and on direct appeal. Since this Court's colloquy was
sufficient, appellate counsel cannot be. held ineffective for failing to object to the colloquy and
for failing to preserve the issue on appeal because the underlying claim has.no merit. Appellate
counsel and PCRA counsel also cannot:be held ineffective for failing to assert claims on appeal
that have no merit. Therefore, the Petitioner's claims that.appellate counsel was ineffective for
not objecting to this Court's .April 29, 2019 colloquy and each of his prior counsel was
ineffective for not raising aclaim challenging this Court's colloquy on appeal fail.
Petitioner's claims that bath PCRA counsel are ineffective for failing to file an Amended
Petition fail because, as discussed above, his claims have no merit. As PCRA counsel cannot be
held ineffective for failing to raise frivolous claims, Petitioner's claims fail, Montalvo, 205 A.3d
at 286. The Petitioner has failed to show how the review and conclusions reached by either
PCRA counsel in their Finley letters were incompetent.
For the foregoing reasons, the Petitioner's petition is DENIED and Gary S. Server, Esq.
is permitted to withdraw. The Petitioner is hereby notified that he has thirty (30) days from the
date of this Order and Opinion to file an appeal with the Superior Court.
BY THIS COURT
Barbara. A. McDermott, I
17
Coin nonivealth. v. Alex lf'atsou, CP 51-CR-00001353-2017
PROOF OF SERVICE
Ihereby certify that. Iam this day serving the foregoing filing upon the person(s), and in
the manner indicated below, which service satisfies the requirements of Pa. R. Crim. P. 119:
Philadelphia District .Attorney's
ney's Office
Three South. Penn Square
Philadelphia, PA 19107
Attn: Tracey Kavanagh
Type of Service: Inter-office: Mail
Alex Watson
QF-3998
SCI Huntingdon
1100 Pike Street
Huntingdon, PA 16652
Type of Service: Certified Mail
Gary S. Server, Esq.
52103 Delaire Landing
Pluladelplua PA 19114
Type of Service: Regular Mail
Dated: February 24, 2022
Sean McFadden
Law Clerk to the
Honorable Barbara A. McDermott
18