Com. v. Allen, J.

J-S17030-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JABRIEL ALLEN :

:

Appellant : No. 1744 EDA 2023

Appeal from the PCRA Order Entered June 16, 2023

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0000395-2019,

CP-51-CR-0002410-2018

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JABRIEL ALLEN :

:

Appellant : No. 1745 EDA 2023

Appeal from the PCRA Order Entered June 16, 2023

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0000395-2019,

CP-51-CR-0002410-2018

BEFORE: BOWES, J., KING, J., and BENDER, P.J.E.

MEMORANDUM BY KING, J.: FILED JULY 2, 2024

Appellant, Jabriel Allen, appeals from the order entered in the

Philadelphia County Court of Common Pleas, which denied his first petition

filed under the Post Conviction Relief Act (“PCRA”). 1 We affirm.

____________________________________________

1 42 Pa.C.S.A. §§ 9541-9546.

J-S17030-24

A prior panel of this Court set forth the relevant facts and procedural

history of this case as follows:

On the evening of February 28, 2018, as Emmanuel White

entered the lobby of an apartment building located at 4445

Holden Street, Philadelphia, Pennsylvania, Devoune Handy

struck him over the head with his cane multiple times,

forcing him to the ground. Appellant was present in the

lobby when the altercation occurred, and he eventually

intervened to separate the two men, who had days earlier

been involved in a family disagreement. Handy later

testified that he did not know Appellant at the time, but the

videotape showed Appellant shaking Handy’s hand when he

entered the lobby.

White stood up and Handy attempted to shake his hand,

suggesting that the fight was over. White refused the

handshake and, instead, produced a knife and chased

Handy toward the door exiting the lobby. Upon catching up

with Handy, White stabbed him twice, in the shoulder and

in his flank. Handy ran into the parking lot outside of the

building with White in pursuit, and then collapsed in the

grass. As White stood over Handy with the knife in his hand,

Appellant drew a .40 caliber Smith and Wesson handgun

and fired two shots at White’s back. White ran, and

Appellant chased him through the parking lot, shooting him

five more times in the back. White collapsed with the knife

still in his hand and later succumbed to his wounds. Handy

survived the stabbing.

Immediately after the shooting, Appellant pulled up the

hood of his sweatshirt, ran back into the lobby of the

apartment building, and exited through the fire door. Two

days later, he traded the handgun used in the shooting for

a different firearm.

Officer Barry Stewart of the Philadelphia Police Department

responded to the scene shortly after the shooting, observed

Handy lying on the ground bleeding, and arranged for

transport for immediate medical attention. Handy later

talked to investigators about the incident and pled guilty to

simple assault for his attack upon White.

-2-

J-S17030-24

Officers Shannon Shippey and Alex Breyer of the

Philadelphia Police Department were stationed near the

Holden building at the time of the incident. The officers

heard gun shots and immediately went to the scene. Upon

arrival, the officers saw White lying on the ground with the

knife still in his hands. Officer Breyer removed the knife

from White’s hands and transported him to a nearby hospital

for treatment of multiple gunshot wounds, but White was

later pronounced dead.

Catena Grey, a security guard stationed in a booth in the

lobby of the Holden building, was on duty at the time of the

shooting. Ms. Grey testified that she witnessed the fight in

real time through the security cameras airing in the booth,

but she did not intervene because such altercations were

frequent and protocol dictated that she not leave the booth.

She observed video depicting White, Handy, and a crowd of

bystanders exiting the building and, soon thereafter, she

heard gunshots. Moments later she saw a hooded male

return through the lobby while carrying a pistol.

Security footage from cameras located both in the lobby and

outside of the apartment building was recovered by

Detective Ohmarr Jenkins and turned over to Detective

Thorsten Lucke, who created a compilation of the incident.

The footage was played and narrated by Detective Lucke

during Appellant’s bench trial. The video depicted the initial

altercation, the men exiting the building, and then multiple

flashes of a muzzle. Surveillance footage also depicted a

male, later identified as Appellant, re-entering the lobby

with something in his hands as the police arrived.

An autopsy of White was performed by Dr. Daniel Brown.

His report, the decedent’s hospital records, and the

investigative reports were subsequently reviewed by Dr.

Lindsay Simon, an expert in forensic pathology. Dr. Simon

testified that the manner of White’s death was a homicide,

and the cause of death was multiple gunshot wounds. Dr.

Simon concluded that he had been shot six times in the

back.

Appellant was arrested and charged with murder and related

weapons offenses in connection with these events. He was

-3-

J-S17030-24

also charged at a separate docket number with firearm

offenses charges associated with a different gun that was

found on his person at the time of his arrest. At a bench

trial held on March 2, 2020, the trial court found Appellant

guilty of third-degree murder, [possessing instruments of

crime (“PIC”)], and the related weapons charges. On

August 28, 2020, Appellant pled guilty at the second docket

number to the weapons charges arising from his arrest.

That same day, Appellant was sentenced to an aggregate

term of twenty to forty years of imprisonment on the third-

degree murder, PIC, and weapons convictions related to the

shooting on February 28, 2018. The court also sentenced

him to a consecutive term of two to four years of

imprisonment for the firearms violations associated with his

arrest [resulting in an aggregate sentence of 22 to 44 years’

imprisonment]. Appellant filed a timely post-sentence

motion, which the trial court denied.

Commonwealth v. Allen, No. 1830 EDA 2020 and No. 1831 EDA 2020,

unpublished memorandum at 2-5 (Pa.Super. filed July 28, 2021) (internal

citations omitted), appeal denied, ___ Pa. ___, 270 A.3d 1102 (2022). This

Court affirmed Appellant’s judgment of sentence on July 28, 2021, and our

Supreme Court subsequently denied his petition for allowance of appeal. See

id.

On March 23, 2022, Appellant timely filed a pro se PCRA petition. The

PCRA court appointed counsel, who subsequently filed a Turner/Finley2 no-

merit letter and motion to withdraw. The court issued Pa.R.Crim.P. 907 notice

on June 13, 2022. Appellant filed a response to the notice, alleging PCRA

counsel’s ineffectiveness. On November 3, 2022, the PCRA court granted

counsel leave to withdraw and appointed new counsel, who subsequently filed

____________________________________________

2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

-4-

J-S17030-24

an amended PCRA petition. On December 15, 2022, the Commonwealth filed

an answer to the amended PCRA petition. The PCRA court granted Appellant

an evidentiary hearing.

On March 24, 2023, the day of PCRA hearing, Appellant requested

permission to file a supplemental petition. The PCRA court granted Appellant

permission to supplement his amended petition and bifurcated the hearing for

testimony regarding Appellant’s new claim. The PCRA court summarized the

relevant testimony from the hearings as follows:

On April 12, 2019, trial counsel, Gary Server, Esq. [(“trial

counsel”)], was appointed to represent [Appellant] and met

with him in person at least five times for trial preparation.

On April 27, 2019, [trial counsel] met with [Appellant] for

the first time and explained the charges and possible

defenses, including justification. At [the] initial meeting,

[Appellant] admitted to shooting the decedent but thought

the shooting was justified. [Thereafter, Appellant informed

trial counsel he wanted to] change his trial strategy by

denying that he was the shooter [but claiming] he merely

picked up the gun after the unknown shooter fled. On

February 22, 2020, less than two weeks before trial,

[Appellant] ultimately abandoned that strategy and

[informed trial counsel] to proceed with the justification

defense[.]

[Contrary to Appellant’s assertions, he] never told [trial

counsel] that he had a special relationship with Handy and

merely told [trial counsel] that he knew Handy from the

neighborhood. [Trial counsel] never instructed [Appellant]

to lie about his relationship with Handy at trial and properly

prepared him to testify[.] While preparing defendants to

testify, [trial counsel] does not rehearse questions with

defendants to prevent testimony from sounding rehearsed

and weakening the case.

Contrary to his claim, [Appellant] never told [trial counsel]

about any previous acts of violence the decedent allegedly

-5-

J-S17030-24

committed and only told [trial counsel] that he knew the

decedent from the neighborhood. [Trial counsel] first

learned about the decedent’s previous confrontation with

Handy during trial when Handy testified that the decedent

threatened him with a knife a few days before the murder.

[Appellant’s] claim that he saw the decedent assault

someone in 2017 and was present for the initial

confrontation between Handy and the decedent was

incredible.

On three different occasions, [trial counsel] properly

ensured that [Appellant] understood his right to a jury trial

and how it differs from a bench trial. After [Appellant]

rejected the Commonwealth’s offer of a non-trial disposition

on the record on February 14, 2020, [trial counsel]

discussed with [Appellant] about proposing a counteroffer

to the Commonwealth to proceed with a bench trial in

exchange for the Commonwealth dropping the First-Degree

Murder charge on February 22, 2020. On February 29,

2020, [trial counsel] informed [Appellant] that the

Commonwealth had agreed to the counteroffer and

[Appellant] agreed to waive his right to a jury trial. On

March 2, 2023, [Appellant] reviewed and completed the

Written Jury Trial Colloquy Form with [trial counsel] before

appearing before [the trial court] and electing to proceed

with a bench trial.

* * *

[In 2018,] Handy was arrested and charged with

Aggravated Assault and related offenses for hitting the

decedent with his cane. Bail was set at ten percent of

$50,000 and two detainers were lodged against Handy in

[two 2008 cases] because he was on probation for two First-

Degree Felony Robbery cases[.]

Former ADA Matthew Krouse, Esq., was assigned to

investigate the decedent’s death and subsequently, Handy’s

Aggravated Assault case.2 Charles Auspitz, Esq., Handy’s

attorney, informed ADA Krouse that Handy would be willing

to cooperate with the homicide investigation but the parties

never formed an agreement regarding the homicide.

2 After [Appellant] was arrested on November 7, 2018

-6-

J-S17030-24

and ADA Krouse approved the charges, the case was

assigned to another ADA.

On April 19, 2018, in the Aggravated assault case before the

Honorable Marvin Williams, ADA Krouse agreed to reduce

bail to house arrest because of the myriad of mitigating

factors in the case including that Handy was stabbed during

the incident, he was previously injured, and his previous

convictions were over ten years old at the time. On that

same day, in the 2008 cases, Judge Palumbo lifted the

detainers without any involvement by ADA Krouse.3 ADA

Driscoll was the ADA in the room and he did not discuss the

2008 cases with ADA Krouse.

3 On April 18, 2018, Judge Palumbo continued the

2008 cases to April 19, 2018.

On May 9, 2018, Handy was taken into custody because the

GPS monitoring system lost power during the night. On May

14, 2018, Handy’s house arrest was reinstated without

Commonwealth objection.

On May 22, 2018, Handy, accompanied by Auspitz, was

interviewed by ADA Krouse in the presence of a Homicide

Detective. Handy did not provide any new information or

make an identification, so the meeting was not documented.

On May 28, 2018, Auspitz emailed ADA Krouse

acknowledging that the proffer “did not bear any fruit.”

On September 24, 2018, in a [Pa.R.Crim.P. 701]

consolidation in the Aggravated Assault case, Judge

Palumbo dismissed the Aggravated Assault charge for a lack

of evidence over ADA Krouse’s objection. That same day,

Handy pled guilty to Simple Assault and related charges and

Judge Palumbo sentenced him to time served to twenty-

three months of incarceration with a probationary tail over

ADA Krouse’s recommendation of a jail time sentence. In

the 2008 case, Judge Palumbo resentenced Handy to

concurrent terms of fourteen years of probation.

(PCRA Court Opinion, filed June 16, 2023, at 6-8) (internal citations omitted).

On April 27, 2023, the PCRA court held the matter under advisement

-7-

J-S17030-24

and requested post-hearing briefing from the parties. On June 16, 2023, the

PCRA court denied relief. On July 2, 2023, Appellant timely filed notices of

appeal at each underlying docket, which this Court consolidated sua sponte.

The PCRA court did not order, and Appellant did not file, a Pa.R.A.P. 1925(b)

statement.

On appeal, Appellant raises the following issues for our review:

Whether the PCRA Court erred as a matter of law and

abused its discretion in failing to award [Appellant] a new

trial based on the Commonwealth’s failure to turnover

impeachment evidence in violation of Brady/Giglio?[3]

Whether trial counsel was ineffective for failing to consult

with [Appellant] about trial strategy and trial testimony?

Whether trial counsel was ineffective for failing to object to

the medical examiner’s report without the testimony of its

author?

Whether trial counsel was ineffective for failing to subpoena

[Handy’s] medical records related to the stabbing?

(Appellant’s Brief at viii) (suggested answers omitted).

Our standard of review of the denial of a PCRA petition is limited to

examining whether the record evidence supports the court’s determination

____________________________________________

3 See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)

(holding suppression by prosecution of evidence favorable to accused upon

request violates due process where evidence is material either to guilt or to

punishment, irrespective of good faith or bad faith of prosecution). See also

United States v. Giglio, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)

(holding prosecutor’s promise of non-prosecution in exchange for cooperation

is attributable to government, regardless of whether prosecutor had authority

to make it or whether trial prosecutor was aware of promise, and

nondisclosure of promise constitutes violation of due process).

-8-

J-S17030-24

and whether the court’s decision is free of legal error. Commonwealth v.

Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d

319 (2008). This Court grants great deference to the findings of the PCRA

court if the record contains any support for those findings. Commonwealth

v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932

A.2d 74 (2007). If the record supports a post-conviction court’s credibility

determination, it is binding on the appellate court. Commonwealth v.

Dennis, 609 Pa. 442, 17 A.3d 297 (2011).

In his first issue, Appellant argues that the Commonwealth withheld

impeachment evidence in violation of Brady/Giglio. Appellant claims the

Commonwealth withheld evidence that: 1) it had given Handy the benefit of

pretrial release; 2) Handy had met with the DA’s Office and homicide

detectives to seek leniency; 3) the Commonwealth considered Handy a

suspect; and 4) Handy had declined to turn over his cell phone for forensic

examination.4 Appellant contends that the Commonwealth withheld relevant

emails between the Commonwealth and Handy’s attorney until PCRA counsel

requested them. Appellant insists that he would have used this information

to impeach Handy’s credibility and establish that Handy had perjured himself

at trial by stating that he had not received a benefit for his testimony.

____________________________________________

4 Specifically, Appellant contends that Handy received a benefit where the trial

court reduced his bail and lifted his detainers. While Appellant admits that

there was no express agreement by the Commonwealth to reduce Handy’s

bail and lift the detainers in exchange for Handy’s testimony, Appellant

suggests that Handy’s testimony was influenced by the Commonwealth’s

“friendly gesture.” (Appellant’s Brief at 19-20).

-9-

J-S17030-24

Appellant submits he suffered prejudice as a result of the Commonwealth’s

violations, because Handy was the only witness who could identify Appellant

from the video. Appellant concludes he is entitled to a new trial on these

grounds. We disagree.

“Under Brady and subsequent decisional law, a prosecutor has an

obligation to disclose all exculpatory information material to the guilt or

punishment of an accused, including evidence of an impeachment nature.”

Commonwealth v. Roney, 622 Pa. 1, 22, 79 A.3d 595, 607 (2013), cert.

denied, 574 U.S. 829, 135 S.Ct. 56, 190 L.Ed.2d 56 (2014). “To establish a

Brady violation, an appellant must prove three elements: (1) the evidence at

issue was favorable to the accused, either because it is exculpatory or because

it impeaches; (2) the evidence was suppressed by the prosecution, either

willfully or inadvertently; and (3) prejudice ensued.” Id. The defendant must

establish all three prongs of the Brady claim to prove entitlement to relief.

Commonwealth v. Murray, 174 A.3d 1147, 1152 (Pa.Super. 2017). “[N]o

Brady violation occurs where the parties had equal access to the information

or if the defendant knew or could have uncovered such evidence with

reasonable diligence.” Commonwealth v. Bagnall, 661 Pa. 123, 150, 235

A.3d 1075, 1091 (2020) (citation omitted).

A Brady violation exists:

[O]nly where the suppressed evidence is material to guilt or

punishment, i.e., where there is a reasonable probability

that, had the evidence been disclosed, the result of the

proceeding would have been different. In determining

whether a reasonable probability of a different outcome has

- 10 -

J-S17030-24

been demonstrated, “[t]he question is not whether the

defendant would more likely than not have received a

different verdict with the evidence, but whether in its

absence he received a fair trial, understood as a trial

resulting in a verdict worthy of confidence.” Kyles v.

Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d

490 (1995). A “reasonable probability” of a different result

is shown when the government’s suppression of evidence

“undermines confidence in the outcome of the trial.”

United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct.

3375, 87 L.Ed.2d 481 (1985).

Commonwealth v. Cousar, 638 Pa. 171, 195, 154 A.3d 287, 301 (2017)

(some internal citations omitted).

Instantly, the PCRA court addressed Appellant’s Brady claim as follows:

[Appellant’s] Brady claim fails because he failed to show

that any deal regarding Handy’s pre-trial release in

exchange for his testimony at trial existed. …

Before the attempted proffer even took place, on April 19,

2018, in the Aggravated Assault case, the Commonwealth

agreed to reduce bail to house arrest because of the many

mitigating circumstances in the case including that Handy

was stabbed during the incident, that Handy was previously

injured, and that his previous convictions were over ten

years old at the time. Merely because the detainers were

lifted in the 2008 cases on the same day Handy’s bail was

reduced is insufficient to establish an undisclosed

agreement with the Commonwealth because VOP hearings

are routinely scheduled on the same day as the defendant’s

open matter.

While Handy did meet with the Commonwealth, almost a

month later, he provided no new information to the

Commonwealth as evidenced by Auspitz’s

acknowledgement that the proffer “did not bear any fruit.”

Judge Palumbo later dismissed the Aggravated Assault

charge and sentenced Handy to time served, against ADA

Krous[e]’s recommendation, further demonstrating the lack

of an agreement between Handy and the Commonwealth.

- 11 -

J-S17030-24

[Appellant] cannot meet his burden by showing that Handy

received a beneficial outcome in a case because he must

establish that Handy received the benefit in exchange for

his testimony at trial. At trial, Handy testified that he did

not receive a benefit for his testimony, testified to the

disposition of the above cases, and his criminal extract was

admitted as an exhibit at trial. Furthermore, while it may

have been the best practice in an abundance of caution to

disclose the communications, [Appellant] cannot establish

prejudice since Handy passed out after being stabbed, so he

did not witness [Appellant] shooting the decedent. Handy’s

testimony served only as a benefit to [Appellant] since it

established the extent of Handy’s injuries caused by the

decedent.

In his post-hearing brief, [Appellant] attempts to claim that

Handy’s statement at trial that he felt harassed to come to

court by the Commonwealth shows that he received some

kind of benefit, is complete conjecture. There is no evidence

before this [c]ourt to show that Handy’s statements were

connected to him being released on house arrest almost two

years ago, especially considering it was Handy’s attorney

who reached out to the Commonwealth. Additionally, on

February 14, 2020, Handy appeared before this [c]ourt to

receive a subpoena for trial and demonstrated his extreme

reluctance to testify in this case. After receiving his

subpoena, the assigned ADA reported that she heard Handy

loudly ranting by the elevators his displeasure about

appearing in court, including saying that “they can suck my

dick about appearing in court.”

[Appellant’s] argument in his post-hearing brief that

Auspitz’s March 15, 2018 email provides Handy with a

motive to kill the decedent is irrelevant because [Appellant]

admitted to shooting the decedent, allegedly because he

feared for Handy’s life. Additionally, the information about

the alleged motive could not have been used to impeach

Handy because it was not Handy’s statement.

[Appellant] also attempts to argue that Auspitz’s March 15,

2018 email identifies two witnesses unknown to the

defense. On the contrary, the email states that Handy’s

ex[-]paramour and her mother could identify the decedent

and Handy on the surveillance footage of the incident, not

- 12 -

J-S17030-24

that they were present for the incident itself. The mere fact

that other people were capable of identifying Handy and the

decedent on the surveillance footage is irrelevant because

both [Appellant] and Handy identified themselves and the

decedent on the footage.

(PCRA Court Opinion at 14-17) (internal citations omitted) (emphasis in

original). The record supports the PCRA court’s conclusion that no Brady

violation occurred. See Ford, supra; Boyd, supra. Although Handy met

with the Commonwealth, the “benefits” he received were prior to and entirely

unrelated to that meeting. See Roney, supra. Thus, Appellant’s first issue

merits no relief.

Appellant’s remaining issues implicate the effective assistance of

counsel. In his first claim of ineffectiveness (Appellant’s second issue on

appeal), Appellant argues that trial counsel failed to consult with Appellant

about trial strategy and testimony. Appellant claims that trial counsel advised

Appellant against disclosing his close friendship with Handy, and counsel failed

to introduce evidence of the decedent’s reputation for violence. According to

Appellant, because the case hinged on self-defense, trial counsel had no

reasonable basis for these actions. Finally, Appellant asserts that he was

prejudiced by counsel’s failure because there is “no doubt that [the] near-

familial relationship [between Appellant and Handy] would have impacted

[Appellant’s] narrative at trial.” (Appellant’s Brief at 23). Appellant concludes

trial counsel was ineffective on these grounds, and this Court must grant relief.

We disagree.

“Counsel is presumed to have rendered effective assistance.”

- 13 -

J-S17030-24

Commonwealth v. Hopkins, 231 A.3d 855, 871 (Pa.Super. 2020), appeal

denied, 663 Pa. 418, 242 A.3d 908 (2020).

[T]o establish a claim of ineffective assistance of counsel, a

defendant must show, by a preponderance of the evidence,

ineffective assistance of counsel which, in the circumstances

of the particular case, so undermined the truth-determining

process that no reliable adjudication of guilt or innocence

could have taken place. The burden is on the defendant to

prove all three of the following prongs: (1) the underlying

claim is of arguable merit; (2) that counsel had no

reasonable strategic basis for his or her action or inaction;

and (3) but for the errors and omissions of counsel, there is

a reasonable probability that the outcome of the

proceedings would have been different.

Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa.Super. 2019),

appeal denied, 654 Pa. 568, 216 A.3d 1029 (2019) (internal citations and

quotation marks omitted). The failure to satisfy any prong of the test for

ineffectiveness will cause the claim to fail. Commonwealth v. Chmiel, 612

Pa. 333, 30 A.3d 1111 (2011).

“The threshold inquiry in ineffectiveness claims is whether the

issue/argument/tactic which counsel has foregone and which forms the basis

for the assertion of ineffectiveness is of arguable merit[.]” Commonwealth

v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot be

found ineffective for failing to pursue a baseless or meritless claim.”

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004)

(citation omitted).

“Once this threshold is met we apply the ‘reasonable basis’ test to

determine whether counsel’s chosen course was designed to effectuate his

- 14 -

J-S17030-24

client’s interests.” Commonwealth v. Kelley, 136 A.3d 1007, 1012

(Pa.Super. 2016) (quoting Pierce, supra at 524, 645 A.2d at 194-95).

The test for deciding whether counsel had a reasonable

basis for his action or inaction is whether no competent

counsel would have chosen that action or inaction, or, the

alternative, not chosen, offered a significantly greater

potential chance of success. Counsel’s decisions will be

considered reasonable if they effectuated his client’s

interests. We do not employ a hindsight analysis in

comparing trial counsel’s actions with other efforts he may

have taken.

Commonwealth v. King, 259 A.3d 511, 520 (Pa.Super. 2021) (quoting

Sandusky, supra at 1043-44).

“To demonstrate prejudice, the petitioner must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceedings would have been different. [A] reasonable probability is a

probability that is sufficient to undermine confidence in the outcome of the

proceeding.” Commonwealth v. Spotz, 624 Pa. 4, 33-34, 84 A.3d 294, 312

(2014) (internal citations and quotation marks omitted). “[A] criminal

defendant alleging prejudice must show that counsel’s errors were so serious

as to deprive the defendant of a fair trial, a trial whose result is reliable.”

Hopkins, supra at 876 (quoting Commonwealth v. Chambers, 570 Pa. 3,

22, 807 A.2d 872, 883 (2002)).

The PCRA court addressed Appellant’s first ineffectiveness claim as

follows:

[Trial counsel] adequately consulted with [Appellant] about

trial strategy because at his very first meeting with

- 15 -

J-S17030-24

[Appellant] he explained the justification defense. At the

hearing, [Appellant] acknowledged that [trial counsel]

explained his possible defenses in the case and how the

“best case” for the defense would be to argue self-defense.

Despite this explanation, [Appellant] was the one who

attempted to change his trial strategy by ridiculously

claiming that he merely picked up the firearm after the

shooting occurred despite his original explanation to [trial

counsel] and the surveillance video. It was not until

February 22, 2020, that [Appellant] told [trial counsel] that

he was abandoning this strategy and wished to proceed with

the justification defense. [Trial counsel] more than

adequately consulted with [Appellant] regarding trial

strategy and [Appellant] cannot establish how further

consultation regarding trial strategy would have changed

the outcome of his trial, so his claim fails.

(PCRA Court Opinion at 11-13).

The record supports the PCRA court’s conclusions. Additionally, the

record elicited at the evidentiary hearing reflects that Appellant failed to

inform trial counsel about his relationship with Handy or the decedent’s

reputation for violence. According to trial counsel, he first learned about the

prior confrontation between Handy and the decedent during Handy’s trial

testimony. The PCRA court credited trial counsel’s testimony and found

Appellant’s claim incredible. As this determination is supported by the record,

we will not disturb it on appeal. See Dennis, supra. On this record,

Appellant cannot succeed on his ineffectiveness claim based on trial counsel’s

alleged failure to prepare him for trial, because it lacks arguable merit. See

Pierce, supra.

In his second claim of ineffective assistance (Appellant’s third issue on

appeal), Appellant argues that trial counsel failed to object to the admission

- 16 -

J-S17030-24

of the medical examiner’s report without the testimony of its author.

Appellant contends that this testimony violated the Confrontation Clause of

the Sixth Amendment of the United States Constitution. Appellant submits

that counsel had no reason for failing to object, and that Appellant suffered

prejudice because the Commonwealth referenced the back wounds in the

medical examiner’s report numerous times to emphasize that Appellant and

Handy were not in immediate danger when the victim was shot. Appellant

concludes trial counsel was ineffective on these grounds, and this Court must

grant relief. We disagree.

Our Supreme Court has explained:

Pennsylvania law requires the preparation of autopsy

reports in all cases of sudden, violent, and suspicious

deaths, or deaths by other than natural causes…to

determine whether the death occurred as the result of a

criminal act, and that coroners conducting such autopsies

must consult and advise the local district attorney to the

extent practicable[.] [The] primary purpose for preparation

of an autopsy report is to establish or prove past events

potentially relevant to a later criminal prosecution[.]

Commonwealth v. Weeden, ___ Pa. ___, 304 A.3d 333 (2023) (internal

citations and quotations omitted). Therefore, in cases where the author of

the autopsy report was not available to testify, and where the testifying

medical expert was not present at the autopsy, admission of such a report

violates the Confrontation Clause. See Commonwealth v. Brown, 646 Pa.

396, 400-01, 185 A.3d 216, 318-19 (2018). Nevertheless, our Supreme Court

has also held that a medical expert “who did not perform the autopsy may

- 17 -

J-S17030-24

testify as to cause of death as long as the testifying expert is qualified and

sufficiently informed.” See Commonwealth v. Ali, 608 Pa. 71, 111-12, 10

A.3d 282, 306-07 (2010). An expert who “properly formed an independent

opinion, and was available to be cross-examined regarding the basis of that

opinion,” does not constitute a Confrontation Clause violation. Brown, supra

at 423.

The PCRA court addressed Appellant’s second ineffectiveness claim as

follows:

Trial counsel was not ineffective for failing to object to the

admission of the coroner’s report because the report was

not admitted into evidence at trial. Dr. Daniel Brown

preformed the decedent’s autopsy but Dr. Lindsay Simon,

Associate Medical Examiner, testified at trial. Only Dr.

[Simon’s] report was admitted into evidence at trial as

Commonwealth’s Exhibit 55 and not Dr. Brown’s coroner’s

report. Dr. [Simon] utilized Dr. Brown’s report, autopsy

photos, and hospital records to form her independent

opinion made to a reasonable degree of scientific certainty.

The Medical Examiner clearly demonstrated her

independent opinion and did not simply “parrot” the author

of the coroner’s report’s conclusions since she disagreed

with the author’s conclusion regarding the path of the

decedent’s wounds, so the claim fails.

(PCRA Court Opinion at 14) (internal citations omitted). On this record, we

see no error in the PCRA court’s conclusion. See Boyd, supra. Dr. Brown’s

autopsy report was not admitted into evidence; Dr. Simon’s conclusions were

made within a reasonable degree of scientific certainty and differed from Dr.

Brown’s conclusions; and trial counsel cross-examined Dr. Simon. (See N.T.,

3/2/20, at 134-50). Accordingly, Appellant cannot succeed on his

- 18 -

J-S17030-24

ineffectiveness claim based upon Appellant’s failure to object to the admission

of a report that was not, in fact, admitted, and where Dr. Simon was available

for cross-examination. See Brown, supra. See also Sandusky, supra;

Poplawski, supra.

In his final claim of ineffectiveness and his last issue on appeal,

Appellant argues that trial counsel failed to subpoena Handy’s medical

records. Appellant asserts that these records would have impeached Handy

and shown the extensive nature of Handy’s wounds, when Handy had

“downplayed” the severity of his injures. (Appellant’s Brief at 28). Appellant

claims that because the case hinged on self-defense, this issue has arguable

merit and there was no reasonable basis to exclude evidence supporting the

strategy. Appellant contends that he suffered prejudice as a result of counsel’s

actions because trial counsel could have used the records to show not only

the acute danger to Handy, but the threat to Appellant. Appellant concludes

that counsel was ineffective for these reasons, and this Court must grant relief.

We disagree.

The PCRA court addressed this claim as follows:

[Appellant] failed to support his boilerplate claim that trial

[counsel] was ineffective for failing to subpoena Handy’s

medical records because he failed to provide those records

to this [c]ourt, so his claim fails. Regardless, even if he had

supported his claim with the records, [Appellant] cannot

establish prejudice because Handy testified to the full extent

of his injuries at trial.

(PCRA Court Opinion at 10). The record confirms that Handy testified that

- 19 -

J-S17030-24

after suffering stab wounds to the shoulder and close to his kidney, he passed

out and fell to the ground due to blood loss. (See N.T. Trial, 3/3/20, at 17-

20). Appellant has not shown how the medical records would have differed

from that testimony to impeach him. Thus, we agree with the court’s

conclusion that Appellant cannot succeed on this ineffectiveness claim. See

Sandusky, supra. Accordingly, we affirm.

Order affirmed.

Date: 7/2/2024

- 20 -