Com. v. Gant, K.

J-S14043-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

KALIF V. GANT, :

:

Appellant : No. 1303 EDA 2014

Appeal from the PCRA Order entered on April 10, 2014

in the Court of Common Pleas of Philadelphia County,

Criminal Division, No. CP-51-CR-0202541-2006

BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED MARCH 16, 2015

Kalif V. Grant (“Grant”) appeals the Order dismissing his Petition filed

pursuant to the Post Conviction Relief Act (“PCRA”).1 Additionally, Grant’s

appellate counsel, Todd Mosser, Esq. (“Attorney Mosser”), has filed a

separate Petition to Withdraw as Counsel. We grant Attorney Mosser’s

Petition to Withdraw as Counsel, and affirm the Order of the PCRA court.

In its Opinion, the PCRA court set forth the relevant factual and

procedural history, which we incorporate herein by reference. See PCRA

Court Opinion, 5/23/14, 1-4.

1

See 42 Pa.C.S.A. §§ 9541-9546.

J-S14043-15

As an addendum, on November 19, 2014, Attorney Mosser filed a “no-

merit” letter pursuant to Turner/Finley,2 along with a Petition to Withdraw

as Counsel.

Initially, we must address Attorney Mosser’s Petition to Withdraw as

Counsel. Where counsel seeks to withdraw on collateral appeal, the

procedure outlined in Turner/Finley must be followed. In Commonwealth

v. Pitts, 981 A.2d 875 (Pa. 2009), our Supreme Court explained that

independent review by competent counsel is required before withdrawal is

permitted. Id. at 876 n.1. Such review requires proof of the following:

1. [a] “no-merit” letter by [] counsel detailing the nature and

extent of his review;

2. the “no-merit” letter by [] counsel listing each issue the

petitioner wished to have reviewed;

3. [C]ounsel’s “explanation,” in the “no-merit” letter, of why the

petitioner’s issues were [without merit];

4. The PCRA court conducting its own independent review of the

record; and

5. The PCRA court agreeing with counsel that the petition was

[without merit].

Id. (citation and brackets omitted).

Further, we have held that the Supreme Court in Pitts did not

expressly overrule the additional requirement imposed by this Court in

2

See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);

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

-2-

J-S14043-15

Commonwealth v. Friend, 896 A.2d 607, 615 (Pa. Super. 2006), stating

that

counsel seeking to withdraw [must] contemporaneously forward

to the petitioner a copy of the application to withdraw that

includes (i) a copy of both the “no-merit” letter, and (ii) a

statement advising the PCRA petitioner that, in the event the

trial court grants the application of counsel to withdraw, the

petitioner has the right to proceed pro se, or with the assistance

of privately retained counsel.

Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011).

Here, Attorney Mosser filed a Turner/Finley no-merit letter and a

Petition to Withdraw as Counsel. In his Petition, Attorney Mosser described

the extent of his review, identified the issues that Grant sought to raise, and

explained why the issues lack merit. In addition, Attorney Mosser provided

Grant with notice of his intention to seek permission to withdraw from

representation, a copy of the no-merit letter, and advised Grant of his rights

in lieu of representation.3 Thus, we conclude that Attorney Mosser has

substantially complied with the requirements necessary to withdraw as

counsel. We now independently review Grant’s claims to ascertain whether

they are without merit.

On appeal, Grant raises the following questions for our review:

1. Whether trial counsel was ineffective for failing to convey a

plea offer to Grant?

3

Attorney Mosser’s Petition to Withdraw as Counsel, as originally filed, failed

to include any proof that he had provided Grant with copies of the no-merit

letter and Petition to Withdraw. Accordingly, we ordered Attorney Mosser to

provide this Court with such proof, which he did.

-3-

J-S14043-15

2. Whether trial counsel was ineffective for failing to move to set

aside the verdict?

3. Whether trial counsel was ineffective for failing challenge the

sufficiency of the evidence?

4. Whether trial counsel was ineffective for failing to challenge

the weight of the evidence?

Turner/Finley Letter at 10, 12 (unnumbered).4

This Court’s standard of review regarding an order

dismissing a petition under the PCRA is whether the

determination of the PCRA court is supported by the evidence of

record and is free of legal error. The PCRA court’s findings will

not be disturbed unless there is no support for the findings in the

certified record. Moreover, a PCRA court may decline to hold a

hearing on the petition if the PCRA court determines that

petitioner’s claim is patently frivolous and is without a trace of

support in either the record or from other evidence.

Commonwealth v. Ortiz, 17 A.3d 417, 420 (Pa. Super. 2011) (citations

omitted).

4

In his no-merit letter, Attorney Mosser also addresses several claims

initially raised by Grant in his pro se PCRA Petition and pro se Supplemental

PCRA Petition, which were filed prior to the appointment of PCRA counsel

and the filing of a counseled Amended PCRA Petition. Because these

additional claims were not included in the counseled Amended PCRA Petition

filed by PCRA counsel, or addressed by the Commonwealth in its Motion to

Dismiss Grant’s PCRA Petition, they do not appear to have been considered

by the PCRA court as a basis for its decision to dismiss Grant’s PCRA Petition

without a hearing. See Pa.R.A.P. 302(a) (providing that “[i]ssues not raised

in the lower court are waived and cannot be raised for the first time on

appeal.”); see also Commonwealth v. Roney, 79 A.3d 595, 611 (Pa.

2013) (holding that issues not presented to the PCRA court are waived).

Notwithstanding, in its Pa.R.A.P. 1925(a) Opinion, the PCRA court thoroughly

addressed these additional claims, set forth the relevant law, and

determined that they lack merit. See PCRA Court Opinion, 5/23/14, 13-20.

We agree with the rationale of the PCRA court. Thus, even if these claims

were not waived, we would have concluded that they lack merit.

-4-

J-S14043-15

In his first issue, Grant contends that trial counsel was ineffective for

failing to convey a plea offer to him. Turner/Finley Letter at 10.

In its Opinion, the PCRA court addressed Grant’s first claim, set forth

the relevant law, and concluded that it lacks merit. See PCRA Court

Opinion, 5/23/14, 5-8. We agree with the sound reasoning of the PCRA

court and affirm on this basis as to this issue. See id.

In his second claim, Grant claims that trial counsel was ineffective for

failing to move to set aside the verdict. Turner/Finley Letter at 12. In his

third claim, Grant claims that appellate counsel was ineffective for failing to

appeal his judgment of sentence on the basis that the evidence was

insufficient to support his convictions. Id. at 12-14.

In its Opinion, the PCRA court addressed Grant’s second and third

claims, and concluded that they lack merit. See PCRA Court Opinion,

5/23/14, 8-11. We agree with the sound reasoning of the PCRA court and

affirm on this basis as to these issues. See id.

In his final claim, Grant claims that appellate counsel was ineffective

for failing to appeal his judgment of sentence on the basis that the verdict

was against the weight of the evidence. Turner/Finley Letter at 14.

In its Opinion, the PCRA court addressed Grant’s final claim and

concluded that it lacks merit. See PCRA Court Opinion, 5/23/14, 11-13. We

agree with the sound reasoning of the PCRA court and affirm on this basis as

to this issue. See id.

-5-

J-S14043-15

Based upon the foregoing, we conclude that Grant’s PCRA Petition is

without merit, and allow Attorney Mosser to withdraw from representation.

Petition to Withdraw as Counsel granted. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/16/2015

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IN THE COURT OF COMMON PLEAS

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA

CRIMINAL TRIAL DIVISION

COMMONWEALTH OF PENNSYLVANIA CP-51-CR-0202541-2006

v.

CP-51-CR-0202541-2006 Comm. v. Gant, Kalif

Opinion

KALIFGANT

111111111111111 "11111111

FILED

7154167631 MAY 23' 2014

.Criminal Ap

OPINION First JUdicial &eta!s Unit

s rtct of PA

McDermott, J. May 23, 2014

Procedural History

On April 2, 2007, after a trial presided over by Honorable Renee Cardwell Hughes, a jury

found petitioner guilty of Third Degree Murder and related charges. On May 22,2007, the Judge

Hughes sentenced the defendant to forty to eighty years of imprisonment.

On June 13,2007, the petitioner filed a Notice of Appeal. On July 3, 2008, petitioner

filed a pro se Post Conviction Relief Act (PCRA) petition, which was dismissed on November

10, 2008 as petitioner's direct appeal was still pending.

On September 21,2009, the Superior Court of Pennsylvania affirmed the petitioner's

judgment of sentence. The Superior Court rejected petitioner's claims that: 1) the prosecutor

made improper comments during his closing argument; 2) the trial court erred in instructing the

jury regarding reasonable doubt; 3) the trial court erred in giving a consciousness of guilt charge,

and; 4) the trial court abused its discretion in sentencing petitioner. On July 30, 2010, the

Supreme Court MPennsylvania denied petitioner's Petition for Allowance of Appeal.

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On April 21, 2011, petitioner filed apro se PCRA petition. On July 29,2011, petitioner

filed a second pro se petition. On August 30, 2012, counsel was appointed to represent petitioner

for purposes of his PCRA. On July 9,2013, private counsel hired by petitioner entered her

appearance to represent the petitioner on his PCRA. On September 13,2013, PCRA counsel

filed an amended PCRA petition styled as a "Supplemental PCRA Petition." On December 3,

2013, the Commonwealth filed aMotion to Dismiss. On February 28,2014 and April 10, 2014,

this Court held evidentiary hearings. On April, 10,2014, this Court dismissed petitioner's PCRA.

On April 25, 2014, petitioner filed a Notice of Appeal.

The Superior Court of Pennsylvania recounted the facts ofthis case as follows:

On April 29, 2005, Kalif Gant[, petitioner,] and several co-

conspirators planed to rob Christopher Jones [] during the course

of a drug deal. (N.T. 3/30107, pgs. 42-43). The drug transaction

was to take place in Progress Plaza, located near the intersection of

Oxford and Broad Streets in the City and County of Philadelphia. 1

Id. The [petitioner] arrived at the Plaza with Melvin Birdsong

("Birdsong") in a blue Oldsmobile, where they met Jereese Brown

("Brown") and Bilal Reed ("Reed), who arrived in a silver Pontiac.

Id. [Petitioner,] Reed, and Brown exited their cars and hid in an

alleyway alongside the vacant supermarket. Id. Birdsong got into

the silver Pontiac and drove to the other end of the parking lot. Id.

J ones entered the backseat. Id. Appellant and Reed walked out of

the alley with guns and approached the rear window of the car. Id

at 46.

Moments later, multiple gunshots were fired from the direction

of the Plaza. (N.T. 3/29107, pg. 142; 153; 3/30107. pg. 18). The

[petitioner] ran up Park Avenue towards 13th Street and collapsed

halfway up the street. (N.T. 3/29107, pg. 143-145; 3/30107, pgs. 18-

24). A second male came from the direction of the Plaza, knelt

down and removed something from [petitioner's] face, and

continued running. (N.T. 3/29107, pgs. 145-146; 155). As police

converged on the scene, Birdsong and Brown drove the blue

Oldsmobile around the comer and attempted to lift [petitioner] into

the car. (N.T. 3/29107, pgs. 147-150).

1 The footnotes from the Superior Court opinion have been omitted.

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A police officer found Birdsong and Brown struggling to assist

[petitioner]. (N.T. 3/29/07, pg. 180). The officer told the two men

to lay [petitioner] on the backseat of her patrol car so he could be

transported quickly to the hospital. (N.T. 3/29/07, pgs. 180-181).

The two men were nervous and apprehensive, but did assist the

officer. Id. After [petitioner] was secured in the car, the officer

instructed Birdsong and Brown to follow her to the hospital. (N.T.

3/29/07, pg. 184). The two men followed the officer to the end of

the block, turned the corner and sped away. (N.T. 3/29/07, pgs.

185; 202).

The police converged on Progress Plaza where they found

Christopher Jones bleeding and unresponsive. (N.T. 3/29/07, pg.

184). Before police arrived on the scene, a bystander approached

Jones to ask who shot him. (N.T. 3/30107, pgs. 9-10). Jones

responded that his name was "Chris" and that his chest hurt. Id

Jones was alive and breathing for approximately five (5) to ten

(10) minutes after the shooting. (N.T. 3/29/07, pg. 233). He was

taken by ambulance, and was pronounced dead at Hahneman

Hospital moments after his arrival. (N.T. 3/29/07, pgs. 237).

Christopher Jones sustained two (2) gunshot wounds to the back.

(N.T. 3/29/07, pgs. 231; 237). Police recovered a Tech-22 and .32

caliber revolver with three (3) spent (fired) rounds; both of which

were found just outside the Plaza. (N.T. 3/29/07, pgs. 64-65; 70;

76; 77). A pair of black cloth gloves, and three (3) bandana's - one

of which had holes cut into it - were also found at the Plaza. Id.

Droplets of blood were found approximately twenty (20) feet from

where the weapons were recovered. (N.T. 3/29/07, pgs. 65; 69;

70). Broken car glass was also recovered on the ground [where]

Jones' body was found. Id

The silver Pontiac Bonneville was found near 10th Street. Reed

and Brown's fingerprints were lifted from the interior and exterior

of the car. (N.T. 3/29/07, pgs. 106; 110; 134; 3/30107, pg. 51). The

rear window of the Pontiac was shot out and there was glass

fragments on the back seat, and a red stain on the bottom of the

rear passenger door. (N.T. 3/29/07, pg. 107). The car was located

approximately forty-five (45) feet from where a .32 revolver was

discarded in an alleyway. (N.T. 3/29/07, pg. 127). After securing a

search warrant, police also seized $214 in cash, and 132 packets of

crack cocaine from the trunk. (N. T. 3/30107, pg. 50).

The [petitioner] sustained a gunshot wound to his neck. (N.T.

3/29/07, pgs. 166-169). At the hospital, police recovered a bullet

removed from [petitioner] following surgery; [petitioner's]

sweatshirt, which had a bullet hole in the left collar, and a folded

up bandana that had two (2) bullet holes in it. Id The location of

the bullet holes in the bandana was consistent with the bandana

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having been folded in a triangular shape and worn as a mask when

[petitioner] was shot. (N.T. 3/30107, pgs. 118-130).

On June 20,2005, [petitioner] gave a statement to police at his

home concerning the shooting death of Christopher Jones. (N.T.

3/30107, pgs. 31-33). [Petitioner] admitted that he was at Progress

Plaza on the evening of April 29, 2005 with Brown[,] Reed,

Birdsong, and Jones. (N.T. 3/30107, pgs. 42-47). He also admitted

to "hiding" in an alleyway with Reed next to the vacant

supermarket as Jones approached the Plaza. (N.T. 3/30107, pgs. 46-

47).

After further investigation, police issued an arrest warrant for

[petitioner]. (N.T. 3/30107, pg. 55). [Petitioner] eluded police for

approximately six (6) weeks. (N.T. 3/30107, pgs. 66-71; 74-75). At

the time of his apprehension, [petitioner] gave the police a false

name.ld. Commonwealth v. Gant, 1612 EDA 2007 (Pa. Super.

September 21, 2009)(Non-precedential decision).

In the amended petition PCRA counsel raises the following issues:

1. Trial counsel was ineffective for failing to convey the offer to petitioner.

2. Trial counsel was ineffective for failing to move to set aside the verdict.

3. Appellate counsel was ineffective for failing to allege a sufficiency of the evidence

claim as to both charges.

4. Appellate counsel was ineffective for failing to argue that the verdict was against the

weight of the evidence.

As a preliminary matter, this Court must address the timeliness of the petition.

A PCRA petition must be filed within one year of the date that the judgment becomes final. 42

Pa.C.S. § 9545(b)(l). A judgment becomes final for purposes of the PCRA "at the conclusion of

direct review, including discretionary review in the Supreme Court of the United States and the

Supreme Court of Pennsylvania, or at the expiration of time for seeking the review." 42 Pa.C.S.

§ 9545(b)(3). On July 30,2010, the Supreme Court of Pennsylvania denied petitioner's Petition

for Allowance of Appeal and on April 21, 2011, petitioner filed his pro se petition. Thus, the

petition is timely.

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To warrant relief based on a claim of ineffective assistance of counsel, a defendant must

show that such ineffectiveness "in the circumstances ofthe particular case, so undermined the

truth-determining process that no reliable adjudication of guilt or innocence could have taken

place." Commonwealth v. Jones, 912 A.2d 268,278 (Pa. 2006); 42 Pa.C.S. § 9543(a)(2)(ii).

Counsel is presumed to be effective. Commonwealth v. Bennett, 57 A.3d 1185, 1195-96 (Pa.

20 12)(citation omitted). To overcome the presumption, the petitioner has to satisfy the

performance and prejudice test set forth in Strickland v. Washington, 466 U.S. 668 (1984). The

Supreme Court of Pennsylvania has applied the Strickland test by looking to three elements,

whether: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for

counsel's actions or failure to act; and (3) the petitioner has shown that he suffered prejudice as a

result of counsel's lapse, i. e., that there is a reasonable probability that the result of the

proceeding would have been different. Bennett, 57 A.3d at 1195-96 (citing Commonwealth v.

Pierce, 527 A.2d 973,975 (Pa. 1987)). If a claim fails under any necessary element of the

Strickland test, the court may proceed to that element first. Bennett, 57 A.3d at 1195-96.

An adequate and properly layered claim must contain more than boilerplate assertions of

prior counsel's ineffectiveness, because "[s]uch an undeveloped argument, which fails to

meaningfully discuss and apply the standard governing the review of ineffectiveness claims,

simply does not satisfy Appellant's burden of establishing that he is entitled to any relief."

Commonwealth v. Rivera, 816 A.2d 282, 287 (Pa. Super. 2003)(citations omitted).

Petitioner alleges that trial counsel failed to convey a plea offer to the petitioner. An

attorney has a duty to communicate a plea offer to his client and to explain the advantages and

disadvantages of the offer. Commonwealth v. Marinez, 777 A.2d 1121, 1124 (Pa. Super. 2001).

As a general rule, defense counsel has the duty to communicate formal offers from the

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prosecution to accept a plea on terms and conditions that may be favorable to the accused.

Missouri v. Frye, 132 S. Ct. 1399, 1408, 182 L. Ed. 2d 379 (20 12)(holding counsel rendered

ineffective assistance for failing to convey a plea offer to appellant before it expired). Failure to

do so may be considered ineffectiveness of counsel if the defendant is sentenced to a longer

prison term than the term he would have accepted under the plea bargain. Id (citing

Commonwealth v. Korb, 617 A.2d 715, 716 (Pa. Super. 1992)); see Commonwealth v. Copeland,

554 A.2d 54, 60-61 (Pa. Super. 1988). In order to be entitled to relief, the petitioner has the

burden of proving that: (1) an offer for a plea was made; (2) trial counsel failed to inform him of

such offer; (3) trial counsel had no reasonable basis for failing to inform him of the plea offer;

and (4) he was prejudiced thereby. Commonwealth v. Chazin, 873 A.2d 732, 735 (Pa. Super.

2005)(citing Copeland, 554 A.2d at 60-61)).

Here, petitioner cannot establish three of the prongs required by Copeland and its

progeny. This Court finds that a plea offer contingent upon cooperation from the petitioner was

made and conveyed to the petitioner by Mr. Joseph Santaguida. Assistant District Attorney John

Doyle credibly testified that he conveyed an interest in having the petitioner cooperate with the

Commonwealth to aid in the prosecution of Reed. N.T. 2128/2014 at 49-51. Because the

petitioner, through his attorney refused to cooperate no specific offer of a number of years was

ever conveyed to the petitioner. Id This Court rejects petitioner's assertion that an offer of five

years was ever made. N.T. 2/2812014 at 27. Mr. Santaguida credibly testified that if an offer of

cooperation had been made he would have conveyed it to his client. N. T. 411 0/20 14 at 17. Mr.

Santaguida's file had an indication that the petitioner refused an offer of cooperation, although

he did not have an independent recollection of such an offer. N.T. 4/1012014 at 7.

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The fact that an offer of cooperation was conveyed to and subsequently rejected by

petitioner is supported by the record. On two occasions outside the presence of the petitioner,

Judge Hughes, Mr. Santaguida, and ADA Doyle discussed the fact that an offer of cooperation

had been made and rejected? During trial, in the presence of the petitioner Judge Hughes

referenced a plea deal. 3 At the mention of this deal, petitioner did not make any sort of showing

that this was the first time he had heard of the offer; in fact he did not react at all. N.T. 4/2/2007

at 18; N.T. 2/28/2014 at 29.

The conclusion that an offer of cooperation was made and rejected by the petitioner is

further supported by the letters written to Judge Hughes for petitioner's sentencing. The

petitioner wrote a letter to Judge Hughes wherein the petitioner explained that he did not

cooperate because his family had been threatened. Commonwealth PCRA Exhibit 1. Three of the

petitioner's family members, Dorthea Miller, Amir Miller, and Ayesha Miller, corroborated

petitioner's account in their letters wherein they indicated that they were aware that an offer

involving cooperation had been made to petitioner. All three individuals insisted that the

petitioner did not take the offer of cooperation because he and his family had been threatened.

N.T. 2/2812014 at 18-26. The evidence contained in the trial record in combination with the

testimony from the PCRA hearings require the conclusion that an offer of cooperation was

conveyed by Mr. Santaguida to petitioner and subsequently rejected by petitioner.

Finally, the petitioner has not met his burden of showing he was prej udiced even if the

offer had not been conveyed. To show prejudice from ineffective assistance of counsel where a

plea offer has lapsed or been rejected because of counsel's deficient performance, defendants

2 The Court: "The question I'm asking you is why this boy is not taking an offer."

Mr. Santaguida: "They didn't make an offer. They only made an offer ifhe cooperated." N. T. 3/28/2007 at 29.

The Court: "[I]t ain't my fault your boy didn't take third." N.T. 4/212007 at 196.

3 The Court: " ... which is why I don't understand why this young man didn't take the Commonwealth's offer, but

that's water under the bridge now." N.T. 4/2/2007 at 18.

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must demonstrate a reasonable probability they would have accepted the earlier plea offer had

they been afforded effective assistance of counsel. Missouri v. Frye, 132 S. Ct. 1399, 1409, 182

L. Ed. 2d 379 (2012). Prior to trial, the petitioner never requested an offer; instead he continued

to assert his innocence even after being convicted. N.T. 2/28/2014 at 39-40. At the evidentiary

hearing on his PCRA, petitioner testified that he would have considered cooperating with the

Commonwealth, but he did not state that he would, in fact, have taken a deal that required

cooperation. N.T. 2/28/2014 at 12-13. Therefore, petitioner has not shown that he was

prejudiced, because there is no evidence he would have agreed to cooperation, followed through

with the cooperation, or admitted his guilt. Accordingly, petitioner has failed to meet his burden

proving trial counsel was ineffective for failing to convey a plea offer.

Petitioner claims that trial counsel was ineffective for failing to "move to set aside the

verdict given that there was no independent evidence to support said charge" and that appellate

counsel was ineffective for failing to "allege that the evidence was insufficient to support the

convictions on both charges." Petitioner alleges that there was no direct evidence tying him to

the robbery or the homicide.

Counsel will not be deemed ineffective for failing to raise a meritless claim.

Commonwealth v. Jones, 912 A.2d 268, 278 (Pa. 2006)(citing Commonwealth v. Hall, 701 A.2d

190,203 (Pa. 1997)). Appellate counsel cannot be found to be ineffective for failing to raise

meritless claims. Commonwealth v. Tanner, 600 A.2d 201,206 (Pa. Super. 1991)(citing

Commonwealth v. Hubbard, 472 Pa. 259, 278, 372 A.2d 687, 696 (1977)).

There was sufficient evidence presented at trial to support the petitioner's convictions. In

its 1925(b) Opinion the trial court explained:

There was sufficient evidence for the fact finder to convict the

appellant on the charge of third degree murder. To find a defendant

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guilty of third degree murder, the Commonwealth need not show

specific intent, but merely that the defendant acted with malice

aforethought; wanton and reckless conduct that manifests extreme

indifference to the value of human life. Commonwealth v. Santos,

876 A.2d 360 (Pa. 2005). Although it may not have been the

perpetrator's purposeful intent to kill a particular person, at the

very least, the defendant's conduct must be such that one could

anticipate death or serious bodily injury would likely result.

Further, malice may be inferred from a consideration ofthe facts

and circumstances in its totality. Commonwealth v. Commander,

260 A.2d 773 (Pa. 1970).

Appellant asserts that he was not the shooter, and therefore,

cannot be convicted of third degree murder. The appellant was

convicted of murder via the principal of accomplice liability.4

Under the theory of accomplice liability, the actor and his

accomplice share equal responsibility for the commission of a

criminal act. Commonwealth v. Bradley, 392 A.2d 688 (Pa. 1978).

Two prongs must be satisfied for a defendant to be found guilty as

an accomplice - first, there must be evidence that the defendant

. intended to aid of promote the underlying offense. Second, there

must be evidence that the defendant actively participated in the

crime by soliciting, aiding, or agreeing to aid the principle.

Commonwealth v. Murphy, 844 A.2d 1228 (Pa. 2004).

These two prongs can be established through circumstantial

evidence. Id. The appellant and his accomplices consciously acted

in concert to ambush Christopher Jones during a drug deal. (N.T.

3/30107, pgs. 42-43). The appellant; Reed and Brown hid in a

nearby alleyway as Jones was driven to them in the back seat of

the silver Pontiac. Id The appellant and his accomplices emerged

from the alley wearing masks and brandishing firearms. (N.T.

3/30107, pgs. 46). After several shots were fired, Jones was found

lying in the Plaza face down with two (2) bullet wounds to the

back. (N.T. 3/29/07, pgs. 207-209). Reed and Brown's fingerprints

were lifted from the interior and exterior of the silver Pontiac,

which was found approximately three (3) blocks from Progress

Plaza. (N.T. 3/29/07, pgs. 104; 112). The rear window of the

vehicle was shot out, with glass fragments found on the back seat

and a red stain on the bottom of the rear door. (N.T. 3/29/07, pg.

107). In addition, the appellant admitted to police that he was in

Progress Plaza the night Jones was killed for the purpose of

robbing Jones. He waited in an alley with his accomplices to

commit the crime. (N.T. 3/30107, pgs. 42-43). The Commonwealth

is not required to prove that it was the appellant who fired the gun

that killed the victim. The principle and his accomplice share equal

responsibility for the commission of a criminal act. See, Murphy,

4 The footnotes from the trial court opinion have been omitted.

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supra. Appellant was a full and active participant in the killing of

Christopher Jones and thus shares the liability for his death.

Third degree murder occurs when a person commits a killing

which is neither intentional nor committed during the perpetration

of a felony, but contains the requisite malice; malice exists where

there is a wickedness of disposition, hardness of heart, cruelty,

recklessness of consequences, and a mind regardless of social duty,

although a particular person may not be intended to be injured.

Commonwealth v. Tielsch, 934 A.2d 81 (Pa. Super. 2007). The

essential element of third degree murder is malice. See, Santos,

supra. The use of a deadly weapon on a vital part of the body is

sufficient to support a finding of malice. See, Commonwealth v.

Murphy, 739 A.2d 141 (Pa. 1999). Jones was shot in the back with

the bullets striking vital organs. (N.T. 3/29107, pgs. 233). Malice is

thus established.

The appellant evidence the requisite malice necessary for third

degree murder when he intentionally participated in an ambush of

Jones brandishing a loaded firearm. Third degree murder requires

no specific intent to kill. Commonwealth v. DiStefano, 787 A.2d

574 (Pa. Super. 2001). Appellant's conduct was such that one

could anticipate that death or serious bodily injury would likely

result after the appellant and his accomplices emerged from the

alleyway with firearms and shot at Jones. The elements ofthird

degree murder are satisfied.

b.) Conspiracy

There was sufficient evidence for the fact finder to convict the

appellant for the crime of conspiracy. In order sustain a conviction

for criminal conspiracy, "the Commonwealth must establish that

the defendant (1) entered into an agreement to commit or aid in an

unlawful act with another person(s), (2) with a shard criminal

intent and, an overt act was done in furtherance of the conspiracy."

Commonwealth v. Johnson, 719 A2.d 778 (Pa. Super. 1998), citing

Commonwealth v. Rios, 684 A.2d 1025, 1030 (Pa. 1996), cert

denied, 520 U.S. 1231 (1997). Therefore, a conviction for

conspiracy "requires proof of the existence of a shared criminal

intent." Johnson, supra, citing Commonwealth v. Sattazahan, 631

A.2d 597,602 (Pa. Super. 1993)[appeal denied, 652 A.2d 293

(1994)]. A conspiracy can be "extracted from the circumstances

that attend its activities."Johnson, supra, citing Commonwealth v.

Kennedy, 453 A.2d 927, 929 (Pa. 1982). As a result, the "conduct

of the parties and the circumstances surrounding their conduct may

create a 'web of evidence' linking the accused to the alleged

conspiracy beyond a reasonable doubt." Commonwealth v.

McKreever, 689 A.2d 272,274 (Pa. Super. 1997).

The appellant admitted his involvement in the conspiracy to

rob Christopher Jones at gunpoint. (N.T. 3/30107, pgs. 42-47). The

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physical evidence corroborated the conspiracy. No error exists on

this record.

c.) Robbery

The evidence was sufficient to sustain a conviction for robbery.

A robbery is committed, if, in the course of committing a theft, one

"threatens another with or intentionally puts him in fear of

immediate serious bodily injury." Commonwealth v. Natividad,

773 A.2d 167 (Pa. 2001); see also, 18 Pa.C.S.A § 3701. A

conviction for robbery does not required proof of a completed

theft, it requires only that the requisite force was used "in the

course of committing a theft," which is statutorily defied as "an

attempt to commit theft or in flight after the attempt or

commission." 18 Pa.C.S.A § 3701 (a)(2). The evidence established

that after Jones arrived a Progress Plaza to conduct a drug deal, the

appellant and his accomplices emerged from hiding the approached

Jones wearing masks and bearing firearms. (N.T. 3/30107, pgs. 42-

46). The Commonwealth was not required to establish that a

completed theft took place that evening, rather, the evidence was

sufficient to establish that force was used to attempt to perpetuate a

theft. There was sufficient evidence to sustain the conviction for

robbery.

The verdict was grounded on the total record which is more

than sufficient to establish all the necessary elements of the

aforementioned crimes. The sufficiency off the evidence

supported, rather than contradicted the verdicts rendered. The

conclusion reaches was well within the reasonable bounds of the

jury's discretion.

This Court finds the trial court's reasoning sound. The evidence is sufficient to support

the petitioner's convictions. Accordingly, neither trial counsel nor appellate counsel was

ineffective for failing to challenge the sufficiency of the evidence.

Petitioner alleges that appellate counsel was ineffective for failing to "argue that the

weight of the evidence failed to support a conviction." Petitioner argues that the petitioner was

never observed to be in possession of a firearm nor was he observed in the same area where the

homicide occurred. Weight of the evidence and sufficiency of the evidence are discrete inquiries.

An argument that the verdict is contrary to the weight ofthe evidence concedes that there is

sufficient evidence to sustain the verdict but contends, nevertheless, that the verdict is against the

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.. ~

weight of the evidence. Commonwealth v. Davis, 799 A.2d 860, 865 (Pa. Super. 2002). An

allegation that the verdict is against the weight of the evidence is addressed to the sound

discretion of the trial court. Commonwealth v. Dupre, 866 A.2d 1089, 1101 (Pa. Super.

2005)(citing Commonwealth v. Sullivan, 820 A.2d 795, 805-806 (Pa. Super. 2003);

Commonwealth v. Widmer, 744 A.2d 745, 751-752 (Pa. 2000). "The factfinder is free to believe

all, part, or none of the evidence and to detennine the credibility of the witnesses."

Commonwealth v. Diggs, 949 A.2d 873, 879 (Pa. 2008).

The Superior Court has explained that the test is whether the evidence is "so tenuous,

vague and uncertain that the verdict shocks the conscience of the court." Commonwealth v.

Sullivan, 820 A.2d 795,806 (Pa. Super. 2003). For one to prevail on a challenge of the weight of

the evidence, the jury's verdict must be so contrary to the evidence as to shock one's sense of

justice. Jd(citing Commonwealth v. Goodwine, 692 A.2d 233,236 (Pa. Super. 1997)).

Petitioner's claim must fail as the evidence presented at trial was overwhelming as to his

guilt. The petitioner was shot and found at the scene of the murder by Police Sergeant Saundra

Russell. Petitioner's co-conspirators fled the scene ofthe murder upon the arrival of Sergeant

Russell, demonstrating their consciousness of guilt. N.T. 3/29/2007 at 180-185, 202.

The petitioner admitted to participating in a conspiracy to rob Jones. N.T. 3/30/2007 at

32-49. In his statement to police, the petitioner stated that he went to the scene with Birdsong

and that he hid in an alley with Reed, whom he knew had a firearm. Jd at 46. The petitioner

admitted that his role in the robbery was to open the back car door and take whatever he found

there during the drug sale. The petitioner explained that he was shot by the backseat passenger

during the robbery. After the murder, the petitioner demonstrated a consciousness of guilt when

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'.'

he evaded arrest for five weeks and when he was found he falsely identified himself at "Kevin

Smith." Id. at 65-75.

The physical evidence supports the contention that the victim was killed in a robbery

committed by three or more persons. Officers recovered a Tech .22 caliber semi-automatic

weapon, a loaded Tech .32 caliber weapon that had been fired three times, three face masks, a

blue and white bandana, a black bandana, and gloves. N.T. 3/2912007 at 64-77, 127. Officers

also found a Pontiac Bonneville registered to Brown, whose rear passenger window had been

shattered by gunshots and contained $214 U. S. Currency and 132 packets of crack cocaine. N. T.

3/29/2007 at 107; N.T. 3/30/2007 at 50. The bandana the petitioner was wearing upon arriving at

the hospital had two bullet holes that were consistent with having been folded into a triangular

shape and worn as a mask when he was shot. N.T. 3/30/2007 at 118-130. This Court's

conscience is not shocked where the evidence presented was overwhelmingly in favor of

conviction.

In his pro se petition petitioner raises the following issues which were not addressed by

PCRA counsel: 5

1. "Was trial counsel ineffective for failing to object to the hearsay testimony of the

coroner who did not perform the autopsy on the victim and only read from the report,

thus depriving petitioner ofthe right to confront his accuser, in violation of both the

Pennsylvania Constitution, Article 1, Section 9, an d, United States Constitution,

Amendment 5, as they pertain to 'Due Process. ",

2. Was trial counsel ineffective for failing to bring forth an expert witness to impeach the

commonwealth's expert witness, Mr. Emira, a forensic expert who gave testimony as to

his theory that petitioner was wearing a bandana over his face at the time that he was

shot; where said testimony was not based on scientific fact. Said ineffectiveness violates

both the Pennsylvania Constitution, Article 1, Section 9, and, United States Constitution,

Amendment 5, as they pertain to Due Process.

5 PCRA counsel failed to address any of the claims raised by petitioner in his pro se petition other than the allegation

that the plea offer was never conveyed as discussed supra.

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3. Did trial counsel render ineffective assistance when he failed to object to the surprise

evidence introduced during trial of a bandana allegedly worn by petitioner. The

introduction of said evidence constitutes a violation of the Pennsylvania and United

States Constitutions as they pertain to due process and in accords with Brady v.

Maryland, 83 S.Ct. 1994 (1963).

4. Did trial counsel render ineffective assistance of counsel when he failed to object when

the prosecution submitted facts to the jury during closing augments that were not in

evidence during trial; and direct appeal counsel was ineffective for failing to rai~e this

claim on direct appeal.

5. Did trial counsel render ineffective assistance of counsel when he failed to inform

petitioner of a plea agreement offered by the prosecution prior to petitioner electing to go

to trial. And direct appeal counsel was ineffective for failing to raise this claim on direct

appeal.

6. Did the Commonwealth throughout trial, and during closing arguments, introduce facts

not in evidence and therefore counsel was ineffective for failing to inform the jury of the

fact that none of these alleged facts were supported by any evidence presented at trial.

7. Was trial counsel ineffective for failing to obtain petitioner's medical record in order to

impeach the Commonwealth's witness who testified that at the time he took petitioner's

statement the petitioner was in perfect heath, alert, and coherent.

8. Was trial counsel ineffective for failing to argue the admission of the bandana

allegedly worn by the petitioner where the chain of custody was fatally compromised.

And, was direct appeal counsel ineffective for failing to raise this claim on direct appeal.

After independent review, this Court finds petitioner's pro se claims to be without merit.

In his first allegation of error, petitioner claims that trial counsel was ineffective for failing to

object to the hearsay testimony of the coroner who did not perform the autopsy on the victim as

it violated his right to confrontation. Petitioner also asserts that appellate counsel was ineffective

for failing to raise this issue on appeal.

A medical expert who did not perform the autopsy may testify as to cause of death as

long as the testifying expert is qualified and sufficiently informed. Commonwealth v. Ali, 10

A.3d 282,304-307 (Pa. 201O)(citing Commonwealth v. Mitchell, 570 A.2d 532 (Pa. Super.

1990); Commonwealth v. Smith, 391 A.2d 1009 (Pa. 1978)). In Commonwealth v. Ali, the

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Supreme Court of Pennsylvania rejected appellant's claim that trial counsel was ineffective for

failing to adequately challenge the Commonwealth's failure to produce at trial the medical

examiner that performed the autopsy on the victim and drafted the autopsy report. The Court

reasoned that Dr. Ian Hood was qualified to render an opinion on cause of death as well as

viewed the victim's body personally and consulted with the medical examiner that performed the

autopsy both before and after the autopsy itself Id

Here, although Dr. Feigin performed the autopsy, Dr. Ian Hood was present when the

autopsy was conducted. N.T. 3/29/2007 at 228. At the time of trial, Dr. Feigin had left the

medical examiner's office and had taken ajob in New Jersey. Id at 227-228. In addition to being

present, Dr. Hood reviewed the report and factual findings of Dr. Feigin and independently

arrived at his own determination of the cause of death. Id at 228-229. This Court finds that Dr.

Hood was qualified to testify as to his expert opinion. Petitioner failed to demonstrate how Dr.

Feigin's testimony would have differed from that of Dr. Hood. Trial counsel was not ineffective

for failing to object to Dr. Hood's testimony. Likewise, appellate counsel was not ineffective for

failing to raise the issue on direct appeal.

Petitioner argues that trial counsel was "ineffective for failing to bring forth an expert

witness to impeach the Commonwealth's expert witness, Mr. Emira, a forensic expert who gave

testimony as to his theory that petitioner was wearing a bandana over his face at the time that he

was shot; where said testimony was not based on scientific fact."

Where a claim is made of counsel's ineffectiveness for failing to call witnesses, it is the

appellant's burden to show that the witness existed and was available; counsel was aware of, or

had a duty to know of the witness; the witness was willing and able to appear; and the proposed

testimony was necessary in order to avoid prejudice to the appellant. Commonwealth v. Chmiel,

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(

30 A.3d 1111, 1143 (Pa. 2011)(quoting Commonwealth v. Wayne, 720 A.2d 456,470 (Pa.

1998)). The mere failure to obtain an expert rebuttal witness is not ineffectiveness. Appellant

must demonstrate that an expert witness was available who would have offered testimony

designed to advance appellant's cause. Chmiel, 30 A.3d at 1143 (citation omitted). Trial counsel

need not introduce expert testimony on his client's behalf if he is able effectively to cross-

examine prosecution witnesses and elicit helpful testimony. Additionally, trial counsel will not

be deemed ineffective for failing to call a medical, forensic, or scientific expert merely to

critically evaluate expert testimony that was presented by the prosecution. Chmiel, 30 A.3d at

1143 (citations omitted).

A PCRA petition must include facts supporting petition and the place in the record where

they appear; to extent they do not appear in record, petition must include affidavits, documents,

and other evidence showing such facts. Pa.R.Crim.P. 902(A)12 and (D). Petitioner has not

provided this Court with any evidence that an expert witness existed at the time of trial who

would have contradicted Gamal Emira's testimony. Mr. Santaguida effectively cross-examined

Emira on his conclusions. N. T. 3/30/2007 at 131-132. This claim is meritIess.

Petitioner next claims that trial counsel was ineffective for failing to "object to the

surprise evidence introduced during trial of a bandana allegedly worn by petitioner." The

bandana was taken from the petitioner's person upon admission to the hospital. The petitioner

was fully aware of what he was wearing the night of the murder and its potential use in his trial.

Petitioner has not asserted that trial counsel requested the bandana and it was not disclosed by

the Commonwealth. Accordingly, there was no violation of Pennsylvania Rule of Criminal

Procedure 573. Petitioner has not alleged that the bandana was exculpatory, in fact the bandana

was inculpatory; thus, there is no Brady violation. This claim is meritIess.

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( .

Petitioner also claims that trial counsel was "ineffective for failing to argue the admission

of the bandana allegedly worn by the petitioner where the chain of custody was fatally

compromised" and appellate counsel was ineffective for failing to raise this claim on direct

appeal. Petitioner alleges that the Commonwealth did not establish the chain of custody for the

bandana because the items Detective Carroll testified to recovering from the hospital were

inconsistent with the items listed in a document entitled "Patient's Possessions at the Time of

Admission or at Time of Transfer."

Pennsylvania Rule of Evidence 901 provides "[t]o satisfy the requirement of

authenticating or identifying an item of evidence, the proponent must produce evidence

sufficient to support a finding that the item is what the proponent claims it is." Pa.R.E. 901 (a).

This requirement is satisfied by testimony by a witness with knowledge that an item is what it is

claimed to be or by distinctive characteristics of the item. Pa.R.E. 901(b). Detective Fran Carroll

testified that on April 30th, 2005, he recovered clothing, including a bandana, collected by

Temple University Hospital from the petitioner and placed the clothing on Property Receipt

2560697. N. T. 3/29/2007 at 167-169. At trial, Detective Carroll identified the bandana as the one

he collected from the hospital. The chain of custody for this evidence was established. Trial

counsel was not ineffective for refraining from objecting to this evidence. Appellate counsel was

likewise not ineffective for failing to raise this claim on direct appeal.

Petitioner next claims trial counsel rendered ineffective assistance when he failed to

object when the prosecution submitted facts to the jury during closing augments that were not in

evidence during trial; and appellate counsel was ineffective for failing to raise this claim on

direct appeal. Petitioner takes issue with the following statements by the prosecutor:

The defendant goes on and says, and Mel wanted me to open the

back door and take whatever was there from them. Well, he was

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obviously going to take something or he wouldn't need the masks

and the guns, neither would the others. N.T. 4/2/2007 at 84.

He goes to the Temple area with the three other men in two cars.

He knows Bilal has a gun. He almost certainly has the Tech

himself. N.T. 4/2/2007 at 89.

It is well-established that a prosecutor is free to present his argument with logical force

and vigor so long as there is a reasonable basis in the record for the prosecutor's

remarks. Commonwealth v. Hutchinson, 25 A.3d 277,306 (Pa. 2011). A prosecutor has

reasonable latitude during his closing argument to advocate his case, respond to arguments of

opposing counsel, and fairly present the Commonwealth's version of the evidence to the jury.

Commonwealth v. Cox, 983 A.2d 666, 687 (Pa. 2009)(citing Commonwealth v. Abu-Jamal, 720

A.2d 79, 110 (Pa. 1998)).

Reversible error arises from a prosecutor's comments only where their unavoidable effect

is to prejudice the jurors, forming in their minds a fixed bias and hostility toward the defendant

such that they could not weigh the evidence objectively and render a fair verdict. Commonwealth

v. Tedford, 960 A.2d 1,33 (Pa. 2008). The prejudicial effect of the prosecutor's remarks must be

evaluated in the context in which they occurred. Commonwealth v. Gooding, 649 A.2d 722, 727

(Pa. Super. 1994)(citing Commonwealth v. D 'Amato, 526 A.2d 300, 309 (1987)).

Here, the prosecutor was within the bounds of permissible argument. Two firearms, three

face masks, a blue and white bandana, a black bandana, and gloves were recovered from the

scene of the murder. N.T. 3/29/2007 at 64-77, 127. It was a reasonable inference from the

evidence that the petitioner was in possession of one of the firearms recovered. It is also a

reasonable inference that the masks and firearms were used for the purpose of committing a

robbery. These remarks represent fair comments on the evidence and were not objectionable.

Accordingly, neither trial nor appellate counsel were ineffective for failing to challenge them.

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Petitioner claims "the Commonwealth throughout trial, and during closing arguments,

introduced facts not in evidence and therefore counsel was ineffective for failing to inform the

jury of the fact that none of these alleged facts were supported by any evidence presented at

trial." Petitioner contends that it was error for the prosecutor to argue that Birdsong, Brown, and

Reed were the petitioner's co-defendants as there was no evidence presented at trial they

committed any criminal acts.

The petitioner is mistaken in his characterization of the evidence. In his own statement to

police, petitioner explained that Birdsong, Brown, Reed, and himself were all involved in a

conspiracy to commit a robbery. N.T. 3/29/2007 at 41-47. Officers recovered a Tech .22 caliber

semi-automatic weapon, a loaded Tech .32 caliber weapon that had been fired three times, three

face masks, a blue and white bandana, a black bandana, and gloves. N.T. 3/2912007 at 64-77,

127. Officers also found a Pontiac Bonneville registered to Brown, whose rear passenger

window had been shattered by gunshots and contained $214 U.S. Currency and 132 packets of

crack cocaine. N.T. 3129/2007 at 107; N.T. 3/30/2007 at 50. It was proper for the prosecutor to

argue that Birdsong, Brown, and Reed were uncharged co-conspirators of the petitioner and

engaged in the criminal acts that resulted in the murder of Jones. The claim is meritIess.

Petitioner claims trial counsel was "ineffective for failing to obtain petitioner's medical

record in order to impeach the Commonwealth's witness who testified that at the time he took

petitioner's statement the petitioner was in perfect heath, alert, and coherent." Petitioner also

claims appellate counsel was ineffective for failing to raise the issue on direct appeal.

As discussed supra, a PCRA petition must include facts supporting petition. Pa.R.Crim.P.

902(A)12 and (D). Petitioner does not provide the medical records he asserts trial counsel failed

to obtain. Petitioner fails to explain how these records would have impeached Detective James

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McLaughlin's testimony nor even at the most basic level their admissibility at trial. Without the

medical records this Court would need to invent a basis for impeachment and this Court refuses

to do so. Trial counsel cross-examined Detective James McLaughlin regarding petitioner's

medical condition when he gave his statement. N.T. 3/30/2007 at 56-62. Additionally, trial

counsel had petitioner's grandmother testify as to petitioner's poor health at the time he gave the

statement. N.T. 4/2/2007 at 31-34. This Court does not see what the medical records could have

added to this point that trial counsel did not already elicit. This claim is meritless.

The petition does not meet the requirements of an ineffective assistance of counsel claim

and does not merit substantive relief under the Post-Conviction Relief Act. For the foregoing

reasons, the decision of this Court should be affirmed.

BY THE COURT,

. - - -..... - - - - -....- -.. --------~--.--_______I_V. ~.---.-.~-.-.--

Barbara A. McDermott, 1. .

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