stating that this Court will not act as counsel and will not develop arguments on behalf of an appellant
How later courts described this case
- stating that this Court will not act as counsel and will not develop arguments on behalf of an appellant
- stating that “counsel cannot be considered ineffective for failing to pursue a meritless claim”
Written by the judges who cited it.
The opinion
J-S28036-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYREE A. MORRIS :
:
Appellant : No. 1953 EDA 2023
Appeal from the PCRA Order Entered July 20, 2023
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0012194-2015
BEFORE: STABILE, J., MURRAY, J., and LANE, J.
MEMORANDUM BY LANE, J.: FILED OCTOBER 16, 2024
Tyree A. Morris (“Morris”) appeals from the order dismissing his first
petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1
We affirm.
Morris and Q.H. (“the Victim”) purchased a rowhome together in
Philadelphia. “The two had previously been in a romantic relationship . . . but
the relationship ended before they moved into the house. They slept in
separate bedrooms.” Commonwealth v. Morris, 253 A.3d 261 (Pa. Super.
2021) (unpublished memorandum at **1-2), appeal denied, 270 A.3d 1102
(Pa. 2022). The Victim’s nine-year-old son also lived with them.
Approximately two months after they moved into the house,
[i]n the early morning hours of October 17, 2015, [Morris] entered
[the Victim’s] room[,] woke her up and asked her if she was
____________________________________________
1 See 42 Pa.C.S.A. §§ 9541-9546.
J-S28036-24
leaving him. When [the Victim] said she was[, Morris] punched
her in the face. He then pulled out a gun, told [the Victim] to turn
around[,] and tied her wrists behind her back. [Morris] told [the
Victim] that if she was not quiet, he would go upstairs and shoot
her son. He then removed her underwear and anally penetrated
her with his penis. After anally penetrating her, [Morris] took [the
Victim] to the bathroom, wiped her off, and dressed her. Now
back in the bedroom, [Morris] told [the Victim] to put her shoes
on, and he put the gun on the bed. While [Morris] was putting a
shirt on, [the Victim] was able to untie herself and ran out of the
bedroom. Shortly after [the Victim ran out] of the house, [Morris],
who was chasing her, [fired] his gun at [the Victim] at least seven
times. [Morris] caught up to [the Victim] across the street from
their home, grabbed her and tried to shoot her. However, the gun
did not fire. [Morris] then started choking [the Victim] and
dragged her on the pavement behind a parked vehicle. [Morris]
continued strangling [the Victim] until she passed out. . . .
[Morris] fled the scene in his vehicle.
Id. at *2.
Portions of this incident were witnessed by Krystal Gross, who was in a
car with her friend at approximately 3:00 to 3:30 a.m. Gross observed a
woman — later determined to be the Victim — screaming for help and running
toward her car. See N.T., 8/24/16, at 4-5. Gross saw a man “running behind
her” with “something in his hand pointing [sic],” and Gross saw “sparks.” Id.
at 5, 9. The man entered a black or navy colored vehicle and “sped off.” Id.
at 6-7. Gross called the police.
The Victim was treated at the hospital and underwent a rape kit
examination by sexual assault nurse examiner Christine Campbell. “The
[V]ictim identified Morris as her assailant. . . . DNA evidence taken from the
[V]ictim’s rectum, and from a cloth still tied to the [V]ictim’s wrist at the crime
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scene, matched that of Morris.” Morris, 253 A.3d 261 (unpublished
memorandum at *2).
Police officers searched the home and the area outside the home. On
the street, officers recovered a Taurus handgun and seven fired cartridge
casings (“FCCs”), and subsequent testing showed this handgun and the FCCs
matched. See N.T., 8/24/16, at 81, 154-55.
Finally, relevant to Morris’ issues on appeal, we summarize that around
4:40 a.m. that same morning, Philadelphia Police Officer Matthew Stankiewicz
was in a marked police car when he responded to a call about a shooting that
“involved . . . a dark colored sedan.” Id. at 13-14. Officer Stankiewicz
observed a black Buick with no license plate proceed at a high rate of speed.
See id. at 14. He followed the Buick until it stopped and Morris exited the
vehicle. Officer Stankiewicz exited his own patrol car and yelled at Morris to
stop. Morris turned around and “faced” the officer but continued to walk away.
Id. at 15. Officer Stankiewicz observed a shotgun, later determined to be
loaded, in plain view in the rear of the Buick. The officer ran toward Morris,
who fled. The following day, Officer Stankiewicz identified Morris in a photo
array. He also identified Morris at trial and testified that during the vehicle
stop, there were streetlights and he observed Morris’ face for “a little bit more
than three seconds.” Id. at 15, 17, 30.
Subsequently, police officers found a license plate inside the back
window of the Buick, and determined the vehicle was registered to Morris. In
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addition to the shotgun observed in plain view, officers recovered a loaded
Beretta handgun from the Buick. See N.T., 8/24/16, at 61, 84-85.
Approximately one week after the assault, Morris was arrested in Maryland
following a two-mile car chase. See PCRA Court Opinion, 7/24/20, at 7.
The Commonwealth charged Morris with attempted murder, rape, and
related offenses, as well as firearms charges with respect to three firearms:
the Taurus handgun recovered from the street, and the shotgun and Beretta
handgun found in the Buick. The charges proceeded to a jury trial, where
Morris was represented by Robert Mozenter, Esquire (“Trial Counsel”). The
Victim, the witness Gross, Officer Stankiewicz, and Nurse Campbell testified
consistently with the above summary.
Morris testified in his own defense. He maintained that he and the
Victim had consensual sexual contact, and he denied that he assaulted, bound,
or pointed a gun at the Victim. See N.T., 8/24/16, at 207. Morris also denied
ownership of the two guns found in the Buick, stating he purchased the vehicle
two days before the assault, but his uncle, Henry Morris (“Uncle”), “and
[another] guy, Murphy,” drove the car as a part of Morris’ cleaning business.
See id. at 182-84.
Morris also presented the testimony of his mother, Deborah Morris
(“Mother”), that one month after the assault, the Victim called her and asked
if Morris would “sign the house over to her [if] she would drop the charges.”
Id. at 174. Mother stated that she reported this information to Trial Counsel.
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See id. However, on cross-examination by Trial Counsel, the Victim denied
she attempted to “make a deal” to “drop the charges” if Morris gave her the
house. See N.T. Trial, 8/23/16, at 152-53.2 The Victim also stated that after
the assault, she did not return to the house. See id. at 91-92.
The jury found Morris guilty of: one count each of attempted murder,
aggravated assault, rape, sexual assault, and possession of an instrument of
crime; two counts each of firearms not to be carried without a license and
carrying firearms on public streets in Philadelphia; and three counts of persons
not to possess a firearm.3
On April 21, 2017, the trial court imposed an aggregate sentence of
twenty-five to fifty years’ imprisonment. Additionally, the trial court found
Morris to be a sexually violent predator under the Sexual Offender Registration
____________________________________________
2 The PCRA court points out there are three volumes of testimony dated
August 23, 2016: (1) one entitled “Motion Volume 2;” (2) one entitled “Trial
(Jury) Volume 1;” and (3) another volume also entitled “Trial (Jury) Volume
1,” but misdated August 23, 2017, and bearing the heading
“Arraignment/Opening Statements” on the first page. For ease of discussion,
we cite the first volume (“Motion Volume 2”) as “N.T. Motion, 8/23/16.” We
cite the second volume (“Trial (Jury) Volume 1” as “N.T. Trial, 8/23/16.”
Finally, we cite the third volume as “N.T. Opening, 8/23/16.”
3 The trial court bifurcated the three charges of persons not to possess a
firearm, such that the jury did not hear evidence and enter its verdict on these
counts until after it had found Morris guilty of the other counts. See N.T.,
8/25/16, at 10-12, 18-19.
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and Notification Act.4 Morris filed a post-sentence motion, which the trial court
denied.
Michael Wiseman, Esquire (“Direct Appeal Counsel”), entered his
appearance on behalf of Morris and filed a timely notice of appeal. However,
he subsequently filed a motion to dismiss the appeal, and this Court granted
the dismissal on December 13, 2017. See Commonwealth v. Morris, 2950
EDA 2017 (Pa. Super. 2017) (order).
On January 18, 2019, Direct Appeal Counsel filed a PCRA petition on
Morris’ behalf, raising several claims of Trial Counsel’s ineffective assistance.
The PCRA court held a brief hearing on Morris’ motion for discovery, related
to his claim that Trial Counsel was ineffective for not moving for production of
text messages on his cell phone.5 Morris claimed these messages would have
shown “the Victim was biased because of [an] interest in the home.” N.T.,
1/2/20, at 4. The PCRA court denied relief, finding the sought-after evidence
would have merely corroborated Mother’s testimony at trial and thus there
were “no extraordinary circumstances” justifying discovery. Id. The PCRA
court dismissed Morris’ remaining claims on the merits.
Morris appealed, and this Court affirmed, albeit on a different ground —
that the petition was untimely under the PCRA’s filing requirements. Morris
____________________________________________
4 See 42 Pa.C.S.A. §§ 9799.10-9799.41.
5 Morris claims the police seized his cell phone at the time of his arrest. See
Morris’ Brief at 44.
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filed a petition for allowance of appeal, which the Pennsylvania Supreme Court
denied. See Morris, 253 A.3d 261 (unpublished memorandum), appeal
denied, 270 A.3d 1102.
On February 11, 2022, Morris filed a second PCRA petition, pro se,
claiming he was entitled to restoration of his PCRA rights, as Direct Appeal
Counsel failed to file his first petition in a timely manner. The Commonwealth
did not oppose relief. The PCRA court reinstated Morris’ PCRA rights6 and
appointed current counsel, Peter Levin, Esquire. Current counsel filed an
amended PCRA petition, then a supplemental PCRA petition, reraising the
claims of ineffective assistance of counsel that were in the first PCRA petition.
The Commonwealth filed responses, suggesting dismissal on the merits. The
PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss the PCRA
petition without a hearing, and on July 20, 2023, dismissed the petition.
Morris filed a timely notice of appeal, and both he and the PCRA court have
complied with Pa.R.A.P. 1925(b). In our review, we consider both the PCRA
court opinion filed in 2020, following Morris’ first PCRA petition, and its present
opinion.
Morris presents the following issues for our review:
1. Trial Counsel ineffectively failed to object to pervasive hearsay
evidence admitted through Nurse Campbell.
____________________________________________
6 We note there is no order in the certified record ruling on Morris’ pro se PCRA
petition, nor a relevant entry on the trial court docket. Nevertheless, the PCRA
court’s opinion stated that it granted the relief requested, and we do not
disturb this ruling. See PCRA Court Opinion, 9/22/23, at 2.
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J-S28036-24
2. Following the prosecutor’s intentional flouting of an evidentiary
ruling, Trial Counsel ineffectively failed to move for a mistrial;
for a curative instruction or move to strike the offending
evidence; and Trial Counsel ineffectively failed to object to the
mention of the questioned evidence during opening
statements, and ineffectively failed to move in limine to
preclude this evidence.
3. [Trial] Counsel ineffectively failed to move to sever weapons
charges.
4. The [trial] court erred in denying two motions to excuse a juror
for cause.
5. [Direct Appeal] Counsel was ineffective for failing to appeal the
juror issue before dismissing [Morris’] direct appeal.
6. [Trial] Counsel ineffectively failed to move for production of the
data on [Morris’] cellphone, which would have included text
messages that would have demonstrated [the Victim’s] bias
based on an interest in the home.
7. [Direct Appeal] Counsel was ineffective for failing to argue that
Trial Counsel was ineffective for failing to request transcript of
Officer Stankiewicz’s police radio.
8. Counsel was ineffective for failing to raise Trial Counsel[‘s]
ineffective[ness] for failing to object when the trial court said
there were no grounds for a Kloiber[7] instruction.
9. [Direct Appeal] Counsel was ineffective for failing to argue Trial
Counsel was ineffective for failing to object to the court’s jury
instruction regarding Officer Stankiewicz’s identification.
10. Trial Counsel [was] ineffective for failing to investigate and
interview [Uncle].
11. The PCRA court erred in not granting an evidentiary hearing[.]
____________________________________________
7 See Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).
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J-S28036-24
Morris’ Brief at 8 (issues reordered and unnecessary capitalization omitted).8
“[T]his Court’s standard of review from the grant or denial of post-
conviction relief is limited to examining whether the [PCRA] court’s
determination is supported by the evidence of record and whether it is free of
legal error.” Commonwealth v. Walker, 110 A.3d 1000, 1003 (Pa. Super.
2015) (citation omitted).
Morris raises several claims of ineffective assistance of counsel. We
note:
[C]ounsel’s performance is presumed to be constitutionally
adequate, and counsel will only be deemed ineffective upon a
sufficient showing by the petitioner. To obtain relief, a petitioner
must demonstrate that counsel’s performance was deficient and
that the deficiency prejudiced the petitioner. . . . [A] properly
pled claim of ineffectiveness posits that: (1) the underlying legal
issue has arguable merit; (2) counsel’s actions lacked an objective
reasonable basis; and (3) actual prejudice befell the petitioner
from counsel’s act or omission.
____________________________________________
8 Preliminarily, we address the large number of claims raised by Attorney
Levin. Additionally, whereas the PCRA court has provided clear and well-
reasoned analyses for denying relief on each issue, often relying on factors
ignored in Morris’ amended PCRA petition, the brief largely fails to ignore the
court’s reasoning, and instead is merely a near-identical reproduction of the
amended PCRA petition. We remind counsel of “the importance of expert,
focused appellate advocacy. While criminal defendants often believe that the
best way to pursue their appeals is by raising the greatest number of issues,
actually, the opposite is true: selecting the few most important issues
succinctly stated presents the greatest likelihood of success.” See
Commonwealth v. Ellis, 626 A.2d 1137, 1140-41 (Pa. 1993) (citation
omitted); see also Commonwealth v. Walker, 954 A.2d 1249, 1255 (Pa.
Super. 2008) (en banc) (stating that “[t]his Court is an error correcting
court”).
-9-
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Id. at 1003. “[A] claim ‘has arguable merit where the factual averments, if
accurate, could establish cause for relief.’” Commonwealth v. Pitt, 313 A.3d
287, 293 (Pa. Super. 2024) (citation omitted). “A petitioner establishes
prejudice when he demonstrates ‘that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would
have been different.’” Walker, 110 A.3d at 1003. “Failure to prove any of
the three elements will result in dismissal of the ineffectiveness claim.” Pitt,
313 A.3d at 293 (citation omitted). “[C]ounsel cannot be found ineffective for
choosing not to raise a meritless claim.” Id. at 295 (citation omitted).
With respect to a claim that counsel was ineffective for not objecting to
evidence, when the subject evidence was cumulative of other, properly
admitted evidence, a petitioner fails to establish prejudice. See
Commonwealth v. Wallace, 724 A.2d 916, 923 (Pa. 1999). Under this
scenario, a petitioner also fails to show counsel did not have a reasonable
basis for not objecting to the evidence. See Commonwealth v. Housman,
226 A.3d 1249, 1264-65 (Pa. 2020).
In his first issue, Morris avers the PCRA court erred in denying relief on
his claim that Trial Counsel was ineffective for not objecting to hearsay
evidence admitted through Nurse Campbell. “Admission of evidence is within
the sound discretion of the trial court and will be reversed only where the
court clearly abused that discretion.” Commonwealth v. Hardy, 918 A.2d
766, 776 (Pa. Super. 2007). Generally, hearsay is not admissible. See
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J-S28036-24
Pa.R.E. 802. “Hearsay is a statement, other than one made by the declarant
while testifying at trial, offered into evidence to prove the truth of the matter
asserted.” Hardy, 918 A.2d at 777 (citing Pa.R.E. 801(c)). Rule of Evidence
803(4) provides that the hearsay rule does not exclude a statement that:
(A) is made for — and is reasonably pertinent to — medical
treatment or diagnosis in contemplation of treatment; and
(B) describes medical history, past or present symptoms,
pain, or sensations, or the inception or general character of the
cause or external source thereof, insofar as reasonably pertinent
to treatment, or diagnosis in contemplation of treatment.
Pa.R.E. 803(4). The comment to the rule states: “Pa.R.E. 803(4) . . . permits
admission of statements made for purposes of medical diagnosis only if they
are made in contemplation of treatment. Statements made to persons
retained solely for the purpose of litigation are not admissible under this rule.”
Pa.R.E. 803(4), Comment.
Additionally, we note:
Even if a court does wrongly admit hearsay, this Court will not
disturb a verdict on that basis alone if the admission constitutes
harmless error. Error is harmless if: (1) the prejudice to the
appellant was nonexistent or de minimis; (2) the erroneously
admitted evidence was merely cumulative of other untainted,
substantially similar and properly admitted evidence; or (3) the
properly admitted and uncontradicted evidence was so
overwhelming and the prejudicial effect of the error was so
insignificant by comparison that the error could not have
contributed to the verdict.
Hardy, 918 A.2d at 777 (citations omitted).
Morris contends that at trial, Nurse Campbell testified about the Victim’s
description of her assailant and the time and place of the assault, and the
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Victim’s statements that Morris punched, strangled, and threatened her.
Morris emphasizes this hearsay evidence was not admissible under the
medical diagnosis or treatment exception, because the Victim did not make
the statements for medical treatment, but rather in contemplation of litigation.
Morris further reasons that by the time Nurse Campbell examined the Victim,
the Victim’s medical treatment and diagnoses were already complete.
In denying relief, the PCRA court found that Morris failed to establish he
was prejudiced in light of the overwhelming trial evidence presented against
him. The court reasoned:
[R]egardless of whether the hearsay statements were
admissible under Rule 803(4), [Morris’] claim fails because the
challenged testimony was cumulative of other evidence in the
case, including [the Victim’s] own in-court testimony, and
therefore, it could not have prejudiced [Morris. See Housman,
226 A.3d at 1264.] At trial, [the Victim], who lived with [Morris]
and was in a relationship with [him] for several years, confidently
identified [him] as the person who assaulted her. [N.T. Trial,
8/23/16, at 94.] Shortly after the assault, at the hospital, [the
Victim] gave a statement to police in which she identified [Morris]
as the individual who sexually assaulted and shot at her. [Id.] at
108-09. She further testified that after she affirmed that her
relationship with [Morris] was over, [Morris] punched her in the
face, brandished a gun, tied her wrists behind her back, and then
anally penetrated her with his penis. [Id.] at 94, 98, 100, 140.
The time and the location of the assault were also established by
[the Victim’s] in-court testimony. Accordingly, the [Victim’s] out-
[of-]court-statements . . . that came into evidence through
[N]urse Campbell were also testified to in court by [the Victim]
and subjected to cross-examination by [Trial C]ounsel.
PCRA Court Opinion, 7/24/20, at 10 (emphasis added). In addition to the
Victim’s testimony, the PCRA court cited:
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proof that [Morris’] DNA was present in [the Victim’s] rectum and
on the cloth that was tied to [her] wrist[;] ballistics evidence
corroborating . . . that [Morris fired a gun] at her, including seven
FCCs recovered from the crime scene that were all fired from the
firearm recovered from the crime scene[; witness Gross’
testimony that she] saw a woman running from a man while
screaming, “help, he’s trying to kill me[;” m]edical evidence
document[ing the Victim’s] injuries[; and] compelling evidence of
[Morris’] consciousness of guilt, as he fled from the scene of the
attack with two firearms in his car, and subsequently was arrested
in Maryland after leading police on a car chase.
Id. at 10-11 (record citations omitted). The PCRA court thus concluded that
even if Trial Counsel had objected to any hearsay evidence, there was no
reasonable probability that the outcome of Morris’ trial would have been
different.
After review, we conclude that the PCRA court’s determination is
supported by the record and free from legal error. On appeal, Morris argues
solely that Nurse Campbell’s testimony did not meet the medical diagnosis or
treatment exception to the hearsay rule. The PCRA court, however, did not
deny relief on this basis, and instead, found that “[r]egardless of whether
the hearsay statements were admissible under Rule 803(f),” Morris did not
establish he was prejudiced, in light of the “overwhelming” evidence against
him. Id. at 10 (emphasis added). Morris does not address, let alone dispute,
this analysis. Instead, he simply reproduces verbatim the same discussion in
his amended PCRA petition that the PCRA court has clearly rejected. In the
absence of any challenge to the PCRA court’s reasoning, we determine no
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relief is due. See Hardy, 918 A.2d at 771 (stating that this Court will not act
as counsel and will not develop arguments on behalf of an appellant).
Furthermore, on the merits, we conclude the PCRA court did not abuse
its discretion in denying relief. The alleged hearsay — the Victim’s description
of the assault and identification of him as the assailant, as testified to by Nurse
Campbell — was cumulative of the testimony the Victim herself gave at trial.
Furthermore, as the PCRA court points out, the DNA and ballistics evidence
corroborated her testimony. Accordingly, Morris did not show he suffered
prejudice, nor that Trial Counsel lacked a reasonable basis for not objecting
to testimony that was merely cumulative of other, properly admitted evidence.
See Housman, 226 A.3d at 1264-65; see also Wallace, 724 A.2d at 923.
Thus, Morris’ first issue warrants no relief.
Morris’ second issue relates to his claim that Trial Counsel was
ineffective in relation to evidence concerning a firearm magazine found during
a search of Morris and the Victim’s home. By way of background, we first
summarize that Philadelphia Police Officer Christopher Brennan testified that
during a search of the house, officers found a loaded firearm magazine in a
kitchen cabinet. See N.T., 8/24/16, at 68. Trial Counsel objected, arguing
the magazine was not relevant. In response, the Commonwealth
acknowledged this magazine was not related to the firearms charges. See id.
at 69. The trial court sustained defense counsel’s objection. Nevertheless,
immediately after this ruling, the following exchange occurred:
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[Commonwealth:] You found [the magazine] in the home?
[Officer Brennan]: Yes.
[Trial Court:] Sustained.
Q. There were also — how about live rounds with it?
A. 26.
[Trial Counsel:] Objection.
Id. at 69-70. At this juncture, the trial court called for a sidebar discussion,
reiterating that evidence of the magazine was not relevant nor admissible
because: (1) it did not match the weapons used in the attack on the Victim or
found in the Buick; and (2) Morris was not charged with possession of this
magazine. See id. at 71, 76.
On appeal, Morris avers the PCRA court erred in denying relief on his
claim that Trial Counsel was ineffective for not further challenging the
Commonwealth’s references to the magazine, and not objecting to
prosecutorial misconduct. This Court has explained:
To succeed on a claim of ineffective assistance of counsel based
on trial counsel’s failure to object to prosecutorial misconduct, the
defendant must demonstrate that the prosecutor’s actions
violated a constitutionally or statutorily protected right, such as
the Fifth Amendment privilege against compulsory self-
incrimination or the Sixth Amendment right to a fair trial, or a
constitutional interest such as due process. “To constitute a due
process violation, the prosecutorial misconduct must be of
sufficient significance to result in the denial of the defendant’s
right to a fair trial.”
Walker, 110 A.3d at 1006 (citation omitted). Additionally, we note:
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[o]rdinarily, admission of testimony which describes, or from
which the jury may infer, past criminal conduct by a defendant
constitutes reversible error. However, not all such references
warrant reversal. An isolated passing reference to prior criminal
activity will not warrant reversal unless the record indicates that
prejudice resulted from the remark. There is no per se rule which
requires a new trial for every passing reference to prior criminal
conduct. Additionally, the possible prejudicial effect of a . . .
reference to prior criminal conduct . . . may, under certain
circumstances, be removed by a cautionary instruction.
Commonwealth v. Fletcher, 41 A.3d 892, 895 (Pa. Super. 2012) (citation
and emphases omitted).
Morris claims the Commonwealth committed prosecutorial misconduct,
as it “had no logical explanation for ignoring the” trial court’s evidentiary
ruling. Morris’ Brief at 39. Morris then asserts Trial Counsel was ineffective
for not: moving to strike Officer Brennan’s answers to the improper
questioning about the magazine; requesting a curative instruction; or
objecting to the Commonwealth’s reference to the magazine in its opening
statement. Morris maintains these “multiple errors” caused him prejudice, as
“the only proof of the sexual assault and [attempted] murder was” the Victim’s
testimony and “[t]his case came down to a credibility determination between”
him and the Victim. Id. at 41.
In denying relief, the PCRA court agreed that the evidence of the
magazines found in Morris’ home was inadmissible. See PCRA Court Opinion,
7/24/20, at 15. However, the PCRA court found Morris was not prejudiced:
[T]he jury’s exposure to this evidence was momentary, and there
is clearly not a reasonable probability that the fleeting references
to that evidence could have affected the outcome of this case.
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As to the prosecutor’s opening, the reference to the two
magazines was [made] in three [different] sentences. [See N.T.
Opening, 8/23/16, at 37-39]. During the trial, there was
reference made to only one of the magazines during the testimony
of Officer Brennan, and the [trial c]ourt immediately sustained
[Trial C]ounsel’s objections to this testimony. [N.T., 8/24/16,] at
69-70. After the jury was removed, the [trial c]ourt directed the
prosecutor to not ask any further questions concerning any
unrelated ammunition magazines and the Commonwealth notified
its additional witnesses not to testify about the magazines. [Id.]
at 77.
Moreover, as stated above, there was overwhelming
evidence to support [Morris’] convictions in this case. In light of
all of that evidence, this [c]ourt is confident that the references to
the magazines found in [Morris’] home were not a factor in this
trial. While [T]rial [C]ounsel could have done more to keep the
jury from hearing this evidence, his failure to do so did not deprive
[Morris] of effective assistance of counsel. . . .
PCRA Court Opinion, 7/24/20, at 15-16.
After review of the record, we conclude that the PCRA court’s
determination is supported by the record and free from legal error. First, with
respect to the Commonwealth’s opening statement, Morris’ entire discussion
is that “the jury heard about inadmissible weapons magazines [o]nce during
opening statements.” Morris’ Brief at 41. Morris provides no further
explanation about the opening statement, nor citation to the place in the
record where it appears. We conclude he has waived this particular claim for
failure to develop an argument. See Pa.R.A.P. 2119(a), (c) (providing that
“[i]f reference is made to [and] matter appearing in the record, the argument
must set forth . . . reference to the place in the record where the matter . . .
appears”); see also Hardy, 918 A.2d at 771.
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With respect to Officer Brennan’s testimony about the magazine, Morris
does not challenge the PCRA court’s discussion that the testimony was fleeting
and there was overwhelming evidence against him. In the absence of any
refutation of this reasoning, we conclude Morris has not overcome the PCRA
court’s conclusion that he has failed to establish prejudice. In any event, the
record supports the PCRA court’s reasoning. Trial Counsel made several
objections to the Commonwealth’s questioning, all of which the trial court
sustained. Given the brevity of the references to the magazine, considered
against the totality of all the other evidence against Morris, we determine
Morris has failed to establish both arguable merit to his underlying issue and
prejudice. Thus, his ineffectiveness claim fails. See Walker, 110 A.3d at
1006. Morris’ second issue does not warrant relief.
In his third issue, Morris asserts the PCRA court erred in denying relief
on his claim that Trial Counsel was ineffective for not moving to sever charges
relating to the two firearms recovered from the Buick. This Court has
explained:
“Whether to join or sever offenses for trial is within the trial court’s
discretion and will not be reversed on appeal absent a manifest
abuse thereof, or prejudice and clear injustice to the defendant.”
Pennsylvania Rules of Criminal Procedure 582(A)(1) provides that
distinct offenses which do not arise out of the same act or
transaction may be tried together if the “evidence of each of the
offenses would be admissible in a separate trial for the other and
is capable of separation by the jury so that there is no danger of
confusion[] or the offenses charged are based on the same act or
transaction.” Pa.R.Crim P. 582(A)(1)(a)-(b). . . .
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Commonwealth v. Knoble, 188 A.3d 1199, 1205 (Pa. Super. 2018) (some
citations omitted). “The critical factor . . . is whether the accused has been
prejudiced by the trial court’s decision not to sever. The accused bears the
burden of establishing such prejudice.” Commonwealth v. Lopez, 739 A.2d
485, 501 (Pa. 1999) (citations omitted).
Evidence of another crime or act may be admissible to prove motive,
opportunity, intent, preparation, plan, knowledge, absence of mistake, or lack
of accident. See Pa.R.E. 404(b)(2). “In a criminal case this evidence is
admissible only if the probative value of the evidence outweighs its potential
for unfair prejudice.” Id. “When a person knows that he is wanted in
connection with a criminal investigation, and flees or conceals himself, such
conduct is admissible as evidence of consciousness of guilt.” Commonwealth
v. Hudson, 955 A.2d 1031, 1036 (Pa. Super. 2008).
Morris asserts the PCRA court erred in denying relief on his claim that
Trial Counsel was ineffective for not moving to sever the charges relating to
the two firearms recovered from the Buick. While Morris acknowledges he
“was alleged to have” fled the scene in the Buick, he maintains that the
firearms “had nothing to do with” — and were recovered “well after” — the
attack on the Victim. Morris’ Brief at 35, 37 (unnecessary punctuation
omitted). Morris points out the attack on the Victim involved a different
weapon. Morris analogizes the firearms found in the Buick to the magazine
found in the home, which the trial court ruled was not relevant. Morris
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maintains that had Trial Counsel moved to sever the charges, the trial court
“would have been obliged” to grant the motion. Id. at 34. Finally, Morris
contends he “was prejudiced by being tried with the gun charges without his
uncle testifying because . . . his uncle would have explained that he was . . .
driving the Buick with the guns.” Id.
In denying relief, the PCRA court found that Morris’ act of fleeing the
scene in the Buick was “an integral part of the criminal transaction involving
the attack on” the Victim. PCRA Court Opinion, 7/24/20, at 12. The court
reasoned:
It is well-established that efforts to flee from the scene of a
crime are an essential part of the history of the case and
admissible to show consciousness of guilt and the means
employed to escape arrest, even if other crimes are committed
during the flight.
The two guns here at issue were found in the car used by
[Morris] to flee the crime scene and evade arrest after his attack
on [the Victim]. The guns in the getaway car clearly could have
facilitated [Morris’] escape and were therefore part of the same
criminal transaction as the attack on [the Victim]. Accordingly,
the [trial c]ourt would have properly denied any motion by [Trial
C]ounsel to sever these gun charges.
Id. (paragraph break added and citations omitted).
After our review, we conclude that the PCRA court’s determination is
supported by the record and free from legal error. Morris acknowledges the
allegation that he fled from the scene in the Buick. See Morris’ Brief at 37
(stating the two firearms “were found in a vehicle purportedly used in the get-
away”). To the extent Morris argues he did not in fact flee from the scene in
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such a manner or that someone else was driving the Buick, such claims go to
the weight of the evidence to support a conviction. The PCRA court did not
abuse its discretion in reasoning that Morris’ flight in the Buick, shortly after
his attack on the Victim, was a part of “the same act or transaction,” and
evidence of his flight was admissible to show consciousness of guilt. See
Lopez, 739 A.2d at 501; see also Knoble, 188 A.3d at 1205. Accordingly,
Morris has not established his underlying issue had merit, and the PCRA court
did not err in denying relief on this claim of Trial Counsel’s ineffective
assistance. See Walker, 110 A.3d at 1003. Thus, we conclude no relief is
due on Morris’ third issue.
In Morris’ fourth issue, he avers the trial court erred, during jury
selection, in denying his motions to excuse two jurors for cause. He claims
that while the trial transcript shows Trial Counsel used only six peremptory
challenges, Morris “recalls” that counsel “used all seven peremptory strikes.”
Morris’ Brief at 43-44. Morris acknowledges that under the PCRA, a claim is
not cognizable if it has been waived. Nevertheless, he reasons that “the failure
to present [this issue] on direct appeal was the result of governmental
interference in the form of a transcript that did not accurately reflect the
proceedings.” Id. at 44.
To be eligible for relief, the PCRA requires that the allegation of error
has not been waived. See 42 Pa.C.S.A. § 9543(a)(3). “[A]n issue is waived
if the petitioner could have raised it but failed to do so before trial, at trial,
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during unitary review, on appeal or in a prior state postconviction proceeding.”
42 Pa.C.S.A. § 9544(b).
The PCRA court suggested that “[b]ecause this claim could have [been],
but was not, raised on direct appeal, it is waived.” PCRA Court Opinion,
7/24/20, at 16. We agree. Furthermore, Morris’ reliance on alleged
governmental interference is misplaced. The only reference in the PCRA to
“interference by government officials” appears in the timeliness exceptions to
the one-year filing requirement. See 42 Pa.C.S.A. § 9545(b)(1)(i). Here, the
PCRA court reinstated Morris’ PCRA rights and accepted his present petition
as timely filed. Thus, the one-year filing exceptions were not applicable, and
in any event, do not revive a waived claim that could have been raised on
direct appeal. Morris’ fourth issue warrants no relief.
In Morris’ fifth issue, he asserts Direct Appeal Counsel was ineffective
for not pursuing the “juror issue” on direct appeal. Morris’ Brief at 45. The
Pennsylvania Supreme Court has explained:
The test for determining whether a prospective juror should be
disqualified is whether he is willing and able to eliminate the
influence of any scruples and render a verdict according to the
evidence, and this is to be determined on the basis of answers to
questions and demeanor . . . . It must be determined whether
any biases or prejudices can be put aside on proper instruction of
the court . . . . A challenge for cause should be granted when the
prospective juror has such a close relationship, familial, financial,
or situational, with the parties, counsel, victims, or witnesses that
the court will presume a likelihood of prejudice or demonstrates a
likelihood of prejudice by his or her conduct or answers to
questions . . . . The decision on whether to disqualify is within the
discretion of the trial court and will not be reversed in the absence
of a palpable abuse of discretion . . . .
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Commonwealth v. Cox, 983 A.2d 666, 682 (Pa. 2009) (citation omitted).
The trial court is “in the best position to assess [the prospective juror’s]
credibility and fitness to serve.” Id. at 683.
We first reiterate Morris’ claim that although the trial transcript indicates
Trial Counsel only used six peremptory strikes, he in fact used seven. Morris
reasons that Direct Appeal Counsel “was ineffective because he did not clarify
the record before dismissing [the] direct appeal.” Morris’ Brief at 45. Morris
avers that he informed Direct Appeal Counsel after the withdrawal of the
appeal:
that juror number two from the second group [sic] gave several
answers that were problematic from a defense perspective. His
mother was sexually assaulted by his father, who “did time” for
the assault, and he had initial difficulty with the concept that the
defendant need not testify. At the conclusion of questioning, the
transcript simply says that the juror was excused, without any
indication of a reason.
Id. at 43 (citing N.T., 8/23/16, at 91-101). Morris also alleges Trial Counsel
“was ineffective for failing to make a record of the reason for the strike.”
Morris’ Brief at 44. Morris then asserts the trial court should have excused
the following two jurors for cause: (1) “Juror [N]umber 28[, who] expressed
that she could not be fair because of her life experiences,” and stated she
could be fair “ [o]nly after the [trial court] asked her two lengthy . . . and two
shorter” questions; and (2) “[J]uror [N]umber 40[, who] never denied that he
could be fair, but . . . based on his life experiences, . . . should not have been
permitted to sit on the jury.” Id. at 41-42. Morris concludes that although
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both jurors stated they could be fair and impartial, these statements were not
credible.
In denying relief, the PCRA court recounted that the trial court found
both jurors could be fair, as follows. Although Juror Number 28 stated “that
she had three friends who had been raped and that she had been a victim of
emotional, but not physical, abuse,” upon further questioning by the court,
the juror “repeatedly affirmed that she could” set aside her and her friends’
experiences and be fair. PCRA Court Opinion, 7/24/20, at 17 (citing N.T.
8/22/16, at 57-60). The trial court explicitly found her response was credible.
Furthermore, Juror Number 40 stated
that his brother was incarcerated for domestic violence, that one
his brothers had been shot, and a second brother shot and killed,
and that he had witnessed a man get stabbed. However, when
the [trial c]ourt inquired as to whether any of these occurrences
would interfere with his ability to be a fair juror, [the juror
responded] that he could still be fair[.]
PCRA Court Opinion, 7/24/20, at 17 (citing N.T. 8/22/16, at 74-79). The PCRA
court thus concluded there were no grounds for the trial court to excuse these
jurors for cause, and Direct Appeal Counsel was not ineffective for not
pursuing this issue on appeal.
After review, we conclude that the PCRA court’s determination is
supported by the record and free from legal error. Once again, Morris fails to
address the PCRA court’s analysis, and he continues to insist the two jurors’
statements, that they could be impartial, were not credible. The trial court,
however, found they were credible and this Court cannot reweigh the
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credibility finding. See Cox, 983 A.2d at 682. Thus, Morris has not
established that his underlying issue had merit, and thus cannot show Direct
Appeal Counsel was ineffective. See Lopez, 739 A.2d at 495 (stating that
“counsel cannot be considered ineffective for failing to pursue a meritless
claim”); see also Walker, 110 A.3d at 1003. Morris’ fifth issue thus does not
warrant relief.
In his sixth issue, Morris avers the PCRA court erred in denying relief on
his claim that Trial Counsel was ineffective for not moving for the production
of text messages from his cell phone. “[W]here proposed evidence is
cumulative of testimony at trial, counsel cannot be deemed ineffective for
failing to present it.” Commonwealth v. Hanible, 30 A.3d 426, 449 (Pa.
2011) (citation omitted). Additionally, we note Pennsylvania Rule of Criminal
Procedure 902(E) provides that generally, “no discovery shall be permitted at
any stage of the [PCRA] proceedings, except upon leave of court after a
showing of exceptional circumstances.” Pa.R.Crim.P. 902(E)(1). “We review
a discovery order entered pursuant to this rule under an abuse of discretion
standard.” Commonwealth v. Flor, 136 A.3d 150, 154 (Pa. 2016).
Morris asserts the PCRA court erred in denying relief on his claim that
Trial Counsel was ineffective for failing to move for the production of text
messages from his cell phone. Morris does not explain between whom these
alleged text messages were exchanged, and his entire discussion of this issue
is, in sum:
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[Morris and the Victim] purchased the home in which they were
living about two months before [Morris’] arrest. While [Morris]
and [M]other each testified that [the Victim] offered to “drop the
charges” in exchange for the home, [the Victim] denied such a
scheme [at trial. N.T. Trial, 8/23/16, at 152-53.] The [trial c]ourt
noted that this evidence would be relevant to showing bias. [N.T.,
8/24/16 at 122].
[Morris] advised [Trial Counsel] that his cellphone, which was
seized by the police at the time of his arrest, contained information
that would have verified [the Victim’s] efforts to have the home
signed over to her in exchange for dropping the charges. Trial
[C]ounsel did nothing to obtain access to the phone. This was
ineffective and entitles [Morris] to relief.
Morris’ Brief at 44.
As stated above, in connection with Morris’ first PCRA petition, the PCRA
court conducted a brief hearing on his request for discovery of the text
messages on his cell phone. At the hearing, the PCRA court found Morris failed
to establish the requisite exceptional circumstances for discovery, as: (1) the
text messages would have merely corroborated Mother’s trial testimony; and
(2) the other evidence presented was “overwhelming” and “strong,” and
“some of it [was] unrefutable.” N.T., 1/2/20, at 5. The PCRA court opinion
further discussed:
[Mother] testified that in November of 2015, [the Victim] called
her and told her that she would drop the charges if [Morris] agreed
to let [the Victim] have the house. [N.T., 8/24/16,] at 174. While
something on [Morris’] cellphone may have corroborated this
testimony, it would not have undermined the testimony of [the
Victim]. As discussed above, all of [the Victim’s] important
testimony inculpating [Morris] was corroborated by other
compelling evidence, including her medical records, her observed
condition at the scene of the crime, DNA, ballistics, and the
testimony of disinterested witnesses. Anything on the cellphone
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merely corroborating [Mother’s] testimony would not have
undermined confidence in the verdict.
PCRA Court Opinion, 7/24/20, at 18-19.
After review, we conclude that the PCRA court’s determination is
supported by the record and free from legal error. First, we observe that on
appeal, Morris does not acknowledge the PCRA court conducted a hearing on
his motion for discovery. Furthermore, Morris does not cite any authority in
his argument. See Pa.R.A.P. 2119(a). In any event, Morris does not refute
the PCRA court’s reasoning that: (1) the alleged text messages would have
merely provided the same information as Mother’s trial testimony; or (2) he
was not prejudiced due to the overwhelming trial evidence against him. See
Hanible, 30 A.3d at 449. Accordingly, no relief is due on Morris’ sixth issue.
In his seventh issue, Morris avers the PCRA court erred in denying relief
on his claim that Trial Counsel was ineffective for not requesting Officer
Stankiewicz’s police radio transcript. In support, Morris claims the transcript
would have shown that the officer’s description of the Buick driver did not
match the description given by other witnesses. Specifically, Morris maintains
that Officer Stankiewicz described the driver as wearing tan pants, a dark-
colored long sleeve shirt or jacket, and a black skull cap, whereas the Victim
testified he was wearing black pants and a black shirt, and the witness Gross
testified she saw a man wearing black sweatpants with white stripes. Morris
further asserts that “Officer Stankiewicz could not have positively identified
him [because of] poor lighting conditions . . . and . . . the fact that the [driver]
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only faced the officer for a split second.” Morris’ Brief at 46. Morris concludes
the radio transcript “would have supported [his] theory of the case that he
was not” the driver of the Buick.9 Id.
The PCRA court agreed with Morris’ summary that Officer Stankiewicz’s
description of the driver’s clothing differed from the descriptions provided by
the Victim and Gross. However, the PCRA court found that a transcript of
Officer Stankiewicz’s radio call “would merely be cumulative of his trial
testimony. Officer Stankiewicz testified to the same description at trial that
[Morris] claims that [he] gave on the radio call.” PCRA Court Opinion,
9/22/23, at 12. The PCRA court further determined the transcript would have
had limited probative value:
Officer Stankiewicz encountered [Morris] approximately an hour
after the shooting occurred. Accordingly, [Morris] had ample time
to change his clothes between the shooting and encountering
Officer Stankiewicz. In addition, there was other compelling
evidence that [Morris] was the person driving the Buick. Officer
Stankiewicz ran the car’s license plate number . . . , which was
obscured by the tinted back windshield, and the car came back as
registered to [Morris]. Moreover, Officer Stankiewicz identified
[Morris] as the car’s driver in a photo array the day after the
shooting and identified him again at trial. Therefore, a transcript
corroborating Officer Stankiewiez’s description of [Morris’]
clothing would have been of limited probative value. As such,
[Direct Appeal C]ounsel could not have been ineffective for failing
____________________________________________
9 In the heading prefacing this issue, Morris states: “Counsel was ineffective
for failing to argue that Trial Counsel was ineffective for failing to request
transcript of Officer Stankiewicz’s police radio.” Morris’ Brief at 45. To the
extent Morris purported to raise a layered ineffectiveness claim challenging
Direct Appeal Counsel’s representation, he makes no further mention of it,
and thus has waived it. See Pa.R.A.P. 2119(a); see also Hardy, 918 A.2d
at 771.
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to argue [T]rial [C]ounsel was ineffective for not seeking the
transcripts.
Id. (record citations omitted).
After review, we conclude that the PCRA court’s determination is
supported by the record and free from legal error. On appeal, Morris wholly
fails to address any of the PCRA court’s sound reasons for denying relief.
Instead, he merely produces verbatim his PCRA claim that Officer
Stankiewicz’s description of the driver differed from those provided by two
witnesses. In the absence of any challenge to the PCRA court’s analysis, we
determine Morris has not shown he was prejudiced by Trial Counsel’s action,
nor that the PCRA court abused its discretion in denying relief. See Walker,
110 A.3d at 1003. Furthermore, we emphasize that a transcript of Officer
Stankiewicz’s radio call would have been merely duplicative of the officer’s
trial testimony. Morris thus cannot show Trial Counsel was ineffective for not
requesting evidence that would have been cumulative of other properly
admitted evidence. See Hanible, 30 A.3d at 449. No relief is due on Morris’
seventh issue.
In his eighth issue, Morris avers the PCRA court erred in denying relief
on his claim that Trial Counsel was ineffective for not requesting a Kloiber
instruction, with regard to Officer Stankiewicz’s identification of him.
Relatedly, in his ninth issue, Morris contends Trial Counsel was ineffective for
not objecting to the jury instruction given. The Pennsylvania Supreme Court
has explained:
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Under Kloiber, “a charge that a witness’[] identification should be
viewed with caution is required where the eyewitness: (1) did not
have an opportunity to clearly view the defendant; (2)
equivocated on the identification of the defendant; or (3) had a
problem making an identification in the past.” Where an
eyewitness has had “protracted and unobstructed views” of the
defendant and consistently identified the defendant “throughout
the investigation and at trial,” there is no need for a Kloiber
instruction.
Commonwealth v. Ali, 10 A.3d 282, 303 (Pa. 2010) (citations omitted).
Additionally, we consider:
[W]hen evaluating the propriety of jury instructions, this Court will
look to the instructions as a whole, and not simply isolated
portions, to determine if the instructions were improper. [A] trial
court has broad discretion in phrasing its instructions, and may
choose its own wording so long as the law is clearly, adequately,
and accurately presented to the jury for its consideration. Only
where there is an abuse of discretion or an inaccurate statement
of the law is there reversible error.
Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014) (citation
omitted).
By way of background, we summarize that at trial, the trial court advised
the parties, “I don’t see grounds for Kloiber instructions.” N.T., 8/23/16, at
186. Trial Counsel did not object. The trial court then instructed the jury on
Officer Stankiewicz’s identification of Morris as follows:
In his testimony, Police Officer Stankiewicz identified
[Morris] as a person who fled from the car containing firearms. In
evaluating Officer Stankiewicz’s testimony, in addition to the other
instructions I’ve provided you for judging the testimony of
witnesses, you should consider the following additional factors on
the issue of identification[.]
A, did the witness have a good opportunity to observe the
perpetrator of the events? B, was there sufficient lighting for him
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to make his observations? C, was he close enough to the
individual to note his facial and other physical characteristics as
well as clothing he was wearing? D, has he made a prior
identification of [Morris] as the perpetrator of the crimes in any
other proceeding? E, was his identification positive or was it
qualified by any hedging or interactions? F, during the course of
this case, did this witness identify anybody else as being the
perpetrator?
In considering whether or not to consider the testimony of
Officer Stankiewicz, you should consider all circumstances under
which his identifications were made.
N.T., 8/25/16, at 76-77.
On appeal, Morris asserts the PCRA court erred in denying relief on his
claim that Trial Counsel was ineffective for not objecting to the trial court’s
decision to not give a Kloiber charge. Morris insists “the first and third
Kloiber scenarios [were] present,” as: (1) “Officer Stankiewicz did not have
an opportunity to properly identify [him] as the man inside the Buick given
the poor lighting conditions” and the fact “he only saw the individual for a split
second;” and (2) when the officer identified him in a photo array, the officer
wrote only that the person “looks like” Morris, not that he “was definitely”
Morris. Morris’ Brief at 47-48 (citing N.T., 8/24/16, at 30, 33-34).
Relatedly, in his ninth issue, Morris avers the PCRA court erred in
denying relief on his claim that Trial Counsel was ineffective for not objecting
to the jury instruction given. Morris’ Brief at 49. Morris contends that whereas
the trial court gave the then-in effect Pennsylvania Standard Criminal Jury
Instruction (Criminal) (“Pa. SSJI”) § 4.07A, “Identification Testimony-
Accuracy Not in Doubt,” the court should have instead given the 4.07B jury
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instruction, “Identification Testimony-Accuracy in Doubt.”10 Id. at 50. The
latter charge included instructions that: (1) there was “a question of whether
this identification is accurate;” and (2) “there was evidence that [the witness]
could not see the criminal clearly.” Id. Morris also reiterates that Officer
Stankiewicz did not have a clear opportunity to view the driver of the Buick
and “had difficulty identifying” him in the photo array. Id. at 51.
In denying relief on Morris’ Kloiber instruction claim, the PCRA court
reasoned:
[N]one of the factors that would warrant a Kloiber charge were
present. Officer Stankiewicz had a clear opportunity to view
[Morris] after [Morris] exited his car as Officer Stankiewicz saw
[Morris’] face, which was uncovered, for over three seconds on a
street with working streetlights. [N.T., 8/24/16,] at 16-17, 30.
Additionally, Officer Stankiewicz never equivocated on his
identification of the driver as [Morris]. The day after the shooting,
Officer Stankiewicz identified [Morris] in a photo array as the
driver he saw exiting the car the previous morning. Id. at 32.
Additionally, at trial, Officer Stankiewicz again identified [Morris]
as the driver. [Id.] at 15-16.
PCRA Court Opinion, 9/22/23, at 13 (some citations omitted).
After review, we conclude that the PCRA court’s determination is
supported by the record and free from legal error. The record supports the
PCRA court’s finding that between the vehicle stop and trial, Officer
____________________________________________
10 At the time of Morris’ 2016 trial, the second edition of the Pa. SSJI was in
effect. Section 4.07A concerned identification testimony whose accuracy was
not in doubt, and section 4.07B related to identification testimony whose
accuracy was in doubt. Under the third edition of the Pa. SSJI, which came
into effect in 2019, section 4.07A incorporated provisions of former section
4.07B. See Pa. SSJI (Crim.) § 4.07A (3d ed. 2019), subcommittee note.
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Stankiewicz did not equivocate on his identification of Morris as the driver of
the Buick — Morris’ challenge to the weight of this identification
notwithstanding. As the officer “consistently identified [Morris] ‘throughout
the investigation and at trial,’ there [was] no need for a Kloiber instruction.”
See Ali, 10 A.3d at 303. Thus, Morris has not shown that his underlying
Kloiber issue had arguable merit, and we conclude the PCRA court did not
abuse its discretion in denying relief on this ineffectiveness claim. See
Walker, 110 A.3d at 1003.
For the same reasons, we determine no relief is due on Morris’ claim
that Trial Counsel was ineffective for not objecting to the jury instruction
given. Morris’ insistence that Officer Stankiewicz “only looked at him for a
split second” and that “it was dark outside” is not supported by the officer’s
testimony that there were streetlights and he saw Morris’ face for more than
three seconds. See N.T., 8/24/16, at 16, 30; see also Morris’ Brief at 51.
The instruction accurately conveyed the law and did not amount to an abuse
of discretion by the trial court. See Antidormi, 84 A.3d at 754. For the
foregoing reasons, no relief is due on Morris’ eighth and ninth issues.
In his tenth issue, Morris avers the PCRA court erred in denying relief
on his claim that Trial Counsel was ineffective for failing to “investigate and
interview” Uncle, whom Morris claimed was, in fact, driving the Buick. Morris’
Brief at 48. Our Supreme Court has stated: “Counsel has a general duty to
undertake reasonable investigations[.] The duty to investigate . . . may
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include a duty to interview certain potential witnesses; and a prejudicial failure
to fulfill this duty, unless pursuant to a reasonable strategic decision, may lead
to a finding of ineffective assistance.” Commonwealth v. Johnson, 966
A.2d 523, 535-36 (Pa. 2009) (citations omitted). When claiming that counsel
failed to call a witness at trial, the petitioner must prove:
(i) the witness existed; (ii) the witness was available to testify;
(iii) counsel knew of, or should have known of, the existence of
the witness; (iv) the witness was willing to testify; and (v) the
absence of the testimony was so prejudicial as to have denied the
defendant a fair trial.
Commonwealth v. Pander, 100 A.3d 626, 639 (Pa. Super. 2014) (en banc).
Morris maintains he told Trial Counsel that it was Uncle who was driving
the Buick. Morris contends that at trial, Trial Counsel stated on the record
that he “may call” Uncle as a witness, but also explained, “I haven’t spoken
to the uncle. I’m having the uncle come down and see what he says.” Morris’
Brief at 48 (quoting N.T., 8/24/16, at 48). However, Morris claims, Trial
Counsel failed to interview Uncle.
In denying relief, the PCRA court reasoned that Morris failed to attach a
witness certification from Uncle stating the substance of his proposed
testimony, nor a certification signed by Morris or his counsel explaining their
efforts to obtain Uncle’ signature. See PCRA Court Opinion, 9/22/23, at 10
(citing 42 Pa.C.S.A. § 9545(d)(1)(i)).
After review, we conclude that the PCRA court’s determination is
supported by the record and free from legal error. Although the PCRA court
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referred to section 9545(d)(1) — which applies when a petitioner wishes to
present a witness at a PCRA evidentiary hearing11 — we conclude the court’s
rationale is consistent with Pander, 100 A.3d at 639. Morris does not claim
Uncle was willing to testify on his behalf at trial, or even that Uncle has
admitted he was driving the vehicle carrying two loaded firearms. Instead,
Morris baldly insists, both in his PCRA petition and on appeal, that Uncle was
the driver. In the absence of any indication that Uncle would have agreed to
testify in this regard at trial, we conclude no relief is warranted on Morris’
tenth issue.
In his eleventh issue, Morris avers the PCRA court erred in denying an
evidentiary hearing on his claims. This Court has explained:
[T]he PCRA court has the 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 any further proceedings.” Pa.R.Crim.P.
909(B)(2). “[T]o obtain 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 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.”
Hanible, 30 A.3d at 452 (some citations omitted).
____________________________________________
11 See 42 Pa.C.S.A. § 9545(d)(1)(i) (providing that “[w]here a petitioner
requests an evidentiary hearing, the petition shall include a certification signed
by each intended witness stating the witness’s name, address, date of birth
and substance of testimony and shall include any documents material to that
witness’s testimony”).
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Morris maintains that he raised genuine issues of material fact
necessitating an evidentiary hearing. Morris also avers that although the
PCRA court “claimed that it had carefully reviewed the record,” the court
“provided no further explanation for denial of an evidentiary hearing for issues
raised over Trial Counsel’s ineffectiveness.” Morris’ Brief at 52.
The PCRA court found there were no genuine issues of material fact that
necessitated a PCRA hearing. See PCRA Court Opinion, 9/22/23, at 16. After
review, we conclude that the PCRA court’s determination is supported by the
record and free from legal error. We incorporate our above analyses of each
of Morris’ issues, and conclude Morris has not raised any issues of material
fact. Accordingly, the PCRA court did not abuse its discretion in dismissing
Morris’ PCRA petition without a hearing.
For the foregoing reasons, no relief is due on any of Morris’ claims.
Order affirmed.
Date: 10/16/2024
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