J. A15041/18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

BRIAN MAURICE CUNNINGHAM, : No. 1773 MDA 2017

:

 Appellant :

Appeal from the PCRA Order, October 27, 2017,

in the Court of Common Pleas of Dauphin County

Criminal Division at No. CP-22-CR-0003140-2010

BEFORE: PANELLA, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 03, 2018

Brian Maurice Cunningham appeals from the October 27, 2017 order 

denying his petitions for relief filed pursuant to the Post-Conviction Relief Act 

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

The relevant facts of this case were set forth in a prior opinion of this 

court on direct appeal and need not be reiterated here. See Commonwealth 

v. Cunningham, 55 A.3d 123 (Pa.Super. 2012) (unpublished memorandum 

at 1-2, quoting trial court opinion, 11/16/11 at 2), appeal denied, 56 A.3d 

396 (Pa. 2012). The PCRA court set forth the relevant procedural history of 

this case as follows:

On June 22, 2011, a jury found [appellant] guilty of 

the charges of Robbery, Burglary, Conspiracy, 

Aggravated Assault, and Unlawful Restraint.[

1] On 

 

1 18 Pa.C.S.A. §§ 3701(a)(1), 3502(a), 903, 2702, and 2902, respectively.
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August 23, 2011, [appellant] was sentenced to an 

aggregate period of 13 to 26 years in a state 

correctional institution, plus fines, costs and 

restitution. [Appellant] was represented by 

Allen Welch, Esquire [(hereinafter, “trial counsel”)] at 

the trial of this matter.

On September 22, 2011, a Notice of Appeal was filed 

on [appellant’s] behalf by Bryan DePowell, Esquire 

[(hereinafter, “appellate counsel”)]. [Appellant’s] 

judgment of sentence was affirmed on July 2, 2012, 

and the Supreme Court denied [appellant’s] Petition 

for Allowance of Appeal on [October 31], 2012. [See 

id.] Thereafter, on March 26, 2013, [appellant] filed 

a pro se [PCRA] Petition[.] On April 2, 2013, this 

Court appointed Jennifer Tobias, Esquire to represent 

[appellant] in his PCRA petition.

Attorney Tobias filed an Amended PCRA Petition on 

behalf of [appellant] on June 17, 2013, requesting 

relief based on several allegations of ineffectiveness 

of counsel. Attorney Tobias later filed an Amended 

PCRA Petition on January 30, 2015 to add a claim that 

[appellant] was sentenced illegally under the 

mandatory minimum statute. A Hearing was 

subsequently held on April 21, 2015, at which 

testimony was heard regarding [appellant’s] claims 

for ineffective assistance of counsel. On June 12, 

2017, Attorney Tobias filed a second Amended PCRA 

Petition to add a claim that trial counsel was 

ineffective for failing to file for a suppression hearing 

to attempt [to] suppress the victim’s testimony at 

trial.

PCRA court opinion, 10/27/17 at 1-2.

As noted, the PCRA court entered an opinion and order on October 27, 

2017, denying appellant’s PCRA petition. This timely appeal followed on 

November 17, 2017. On November 21, 2017, the PCRA court directed 

appellant to file a concise statement of errors complained of on appeal, in 
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accordance with Pa.R.A.P. 1925(b). Appellant filed a timely Rule 1925(b) 

statement on December 11, 2017. On December 13, 2017, the PCRA court 

filed a one-paragraph Rule 1925(a) opinion indicating that it was relying on 

its rationale set forth in its prior October 27, 2017 opinion.

Appellant raises a litany of ineffectiveness claims for our review:

1. WHETHER COUNSEL WAS INEFFECTIVE FOR 

FAILING TO FILE A SUPPRESSION MOTION 

REGARDING THE ALLEGED VICTIM’S

TESTIMONY?

2. WHETHER COUNSEL WAS INEFFECTIVE FOR 

FAILING TO CALL AN EXPERT WITNESS TO 

DISPUTE IN[-] COURT IDENTIFICATION OF THE

APPELLANT?

3. WHETHER COUNSEL WAS INEFFECTIVE FOR 

FAILING TO REQUEST A MISTRIAL AFTER 

IDENTIFICATION BY THE VICTIM?

4. WHETHER COUNSEL WAS INEFFECTIVE FOR 

FAILING TO INVESTIGATE AND INTERVIEW 

WITNESSES, INCLUDING AN ALIBI WITNESS?

5. WHETHER COUNSEL WAS INEFFECTIVE FOR 

FAILING TO INVESTIGATE THE CASE AND 

ADEQUATELY PREPARE FOR TRIAL?

6. WHETHER THERE WAS PROSECUTORIAL 

MISCONDUCT DURING TRIAL WHEN THE 

COMMONWEALTH BRIBED THEIR WITNESS TO 

TESTIFY?

7. WHETHER APPELLATE COUNSEL WAS 

INEFFECTIVE FOR FAILING TO PROVIDE A 

SUPPORTING RECORD ON APPEAL?

8. WHETHER THE APPELLANT WAS SENTENCED 

ILLEGALLY?
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Appellant’s brief at 8.

2

 

Proper appellate review of a PCRA court’s dismissal of a PCRA petition 

is limited to the examination of “whether the PCRA court’s determination is 

supported by the record and free of legal error.” Commonwealth v. Miller, 

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “This Court grants 

great deference to the findings of the PCRA court, and we will not disturb those 

findings merely because the record could support a contrary holding.” 

Commonwealth v. Patterson, 143 A.3d 394, 397 (Pa.Super. 2016) (citation 

omitted). In order to be eligible for PCRA relief, a defendant must plead and 

prove by a preponderance of the evidence that his conviction or sentence 

arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2). 

Further, these issues must be neither previously litigated nor waived. 

42 Pa.C.S.A. § 9543(a)(3).

We begin by addressing appellant’s claim that “[t]here was prosecutorial 

misconduct when the Commonwealth bribed their witness[, Xiomara Rivera,] 

to testify against [him].” (Appellant’s brief at 22.) Appellant acknowledges 

that he failed to raise this claim in his initial PCRA petition or any amendment 

thereto but argues he is entitled to relief because it was referenced during the 

April 21, 2015 evidentiary hearing. (Id.) We disagree. Under the PCRA, “an 

issue is waived if the petitioner could have raised it but failed to do so before 

 

2 For the purposes of our review, we have elected to address appellant’s claims 

in a different order than presented in his appellate brief.
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trial, at trial, during unitary review, on appeal[,] or in a prior state 

postconviction proceeding.” 42 Pa.C.S.A. § 9544(b). Accordingly, because 

appellant failed to raise this issue on direct appeal, he is not entitled to relief 

on this claim. See, e.g., Commonwealth v. Ford, 809 A.2d 325, 329 (Pa. 

2002) (holding that petitioner’s claims of trial court error, constitutional error, 

and prosecutorial misconduct, which could have been raised on direct appeal 

but were not, were waived under the PCRA), certiorari denied, 540 U.S. 

1150 (2004).

Appellant also argues that his judgment of sentence of 13 to 26 years’ 

imprisonment imposed pursuant to the mandatory minimum sentencing 

statute, 42 Pa.C.S.A. § 9712, violated the Supreme Court’s mandate in 

Alleyne v. United States, 570 U.S. 99 (2013).3 (Appellant’s brief at 24.) In 

support of this contention, appellant cites Commonwealth v. Newman, 99 

A.3d 86, 103 (Pa.Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 

2015), wherein this court found that Alleyne renders the mandatory 

minimum sentencing provision set forth in Section 9712.14 unconstitutional. 

(Appellant’s brief at 24-25.) Contrary to appellant’s contention, courts in this 

Commonwealth have recognized that Alleyne and its progeny do not apply 

 

3

In Alleyne, the Supreme Court held that the Sixth Amendment requires that 

“[a]ny fact that, by law, increases the penalty for a crime is an ‘element’ that 

must be submitted to the jury and found beyond a reasonable doubt.” 

Alleyne, 570 U.S. at 103 (citation omitted). 

4 Section 9712.1 concerns sentences for certain drug offenses committed with 

firearms.
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retroactively to cases on collateral review. See Commonwealth v. 

Washington, 142 A.3d 810, 814-815 (Pa. 2016) (holding that the Alleyne

decision does not apply retroactively to collateral attacks upon mandatory 

minimum sentences advanced in PCRA proceedings); see also 

Commonwealth v. Riggle, 119 A.3d 1058, 1064 (Pa.Super. 2015) (stating 

that, “while this Court has held that Alleyne applies retroactively on direct 

appeal, we have declined to construe that decision as applying retroactively 

to cases during PCRA review”). Accordingly, appellant’s sentencing claims 

fails.

Appellant’s remaining six claims concern the ineffectiveness of his trial 

and appellate counsel. To prevail on a claim of ineffective assistance of 

counsel under the PCRA, a petitioner must plead and prove by a 

preponderance of the evidence that counsel’s ineffectiveness “so undermined 

the truth-determining process that no reliable adjudication of guilt or 

innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii). 

Specifically, a petitioner must establish the following three factors: “first[,] 

the underlying claim has arguable merit; second, that counsel had no 

reasonable basis for his action or inaction; and third, that [a]ppellant was 

prejudiced.” Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa.Super. 

2014), appeal denied, 104 A.3d 523 (Pa. 2014) (citation omitted). 

“[C]ounsel is presumed to be effective and the burden of demonstrating 

ineffectiveness rests on appellant.” Commonwealth v. Ousley, 21 A.3d 
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1238, 1242 (Pa.Super. 2011) (citation omitted), appeal denied, 30 A.3d 487 

(Pa. 2011). 

Appellant first argues that trial counsel was ineffective in failing to file a 

motion to suppress the victim’s testimony. (Appellant’s brief at 13.) The 

record reflects that appellant failed to include this specific allegation of trial 

counsel’s ineffectiveness in his court-ordered Rule 1925(b) statement. 

Likewise, appellant’s contention that “[a]ppellate counsel was ineffective for 

failing to provide a supporting record on appeal” was also absent from the 

Rule 1925(b) statement. (Id. at 23.) Accordingly, these claims are waived. 

See Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (stating, “[a]ny 

issues not raised in a Pa.R.A.P. 1925(b) statement will be deemed waived; 

the courts lack the authority to countenance deviations from the Rule’s 

terms[.]” (citation omitted)). 

Appellant next argues that trial counsel “was ineffective for failing to call 

an expert witness at trial to dispute the in[-]court identification of [appellant]”

by the victim. (Appellant’s brief at 14.) This claim is meritless. As recognized 

by the PCRA court, at the time of appellant’s jury trial in June 2011, “expert 

testimony regarding witness identification was prohibited, as it intruded upon 

the jury’s basic function of determining credibility.” (PCRA court opinion, 

10/27/17 at 3, citing Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014).) 

It is well settled that trial counsel cannot be found ineffective for failing to 

raise or pursue meritless claims. See Commonwealth v. Freeland, 106 
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A.3d 768, 778 (Pa.Super. 2014) (stating, “it is axiomatic that [trial] counsel 

will not be considered ineffective for failing to pursue meritless claims.” 

(citation omitted)). Accordingly, this ineffectiveness claim fails. 

In a related claim, appellant further argues that trial counsel was 

ineffective for failing to request a mistrial after the victim identified him at 

trial. (Appellant’s brief at 16.) For the following reasons, we disagree. 

A motion for mistrial is a matter addressed to the discretion of the court, 

and “[a] trial court need only grant a mistrial where the alleged prejudicial 

event may reasonably be said to have deprived the moving party of a fair and 

impartial trial.” Commonwealth v. McCamey, 154 A.3d 352, 355 

(Pa.Super. 2017) (citations omitted). 

Here, trial counsel testified at the April 21, 2015 hearing that he had no 

reasonable basis to request a mistrial in this case:

Q. Did you feel just, listening to the testimony, that 

it was something that you could have done to 

better represent [appellant], request a mistrial?

A. I don’t believe that a mistrial would have 

changed anything. I don’t believe I would have 

been granted a mistrial. And as has been noted, 

there was -- there was no legal right to have an 

expert to challenge the identification process at 

that time. The -- I thought the victim has been 

tentative, had been impeached sufficiently. I 

felt we had done everything that we could do 

with that identification issue. And I didn’t see 

anything to gain by asking for a mistrial, which 

I wouldn’t have gotten anyway.

Notes of testimony, 4/21/15 at 68.
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The PCRA court, in turn, addressed this this claim in its October 27, 

2017 opinion and concluded that appellant did not suffer any prejudice by trial

counsel’s inaction. Specifically, the trial court reasoned as follows:

[T]here is no evidence that [appellant] suffered 

prejudice as a result of his counsel’s failure to request 

a mistrial. At the original trial, [trial counsel]

immediately objected to the identification testimony 

and requested that it be stricken. A discussion was 

held at sidebar, and the Court denied [trial counsel’s]

Motion to Strike the testimony, determining that the 

identification could be tested by cross-examination. 

Given this Court’s denial of the Motion to Strike, this 

Court also would have denied any request for a 

mistrial. “A trial court need only grant a mistrial 

where the alleged prejudicial event may reasonably 

be said to have deprived the moving party of a fair 

and impartial trial.” [Commonwealth] v. Tharp, [] 

830 A.2d 519, 532-533 (Pa. 2003)[, certiorari 

denied, 541 U.S. 1045 (2004).] Since a mistrial

would not have been granted, [appellant] suffered no 

prejudice as a result of his trial counsel’s failure to 

request same.

PCRA court opinion, 10/27/17 at 4.

Following our careful consideration, we find that trial counsel’s and the 

PCRA court’s conclusions are supported by competent evidence. As appellant 

has failed to satisfy both the reasonable basis and prejudice prongs of the 

ineffectiveness test, his claim warrants no relief. See Charleston, 94 A.3d 

at 1020.

Appellant’s final two claims concern trial counsel’s purported 

ineffectiveness for failing to properly investigate this case or “adequately 

prepare for trial.” (Appellant’s brief at 21.) Specifically, the crux of appellant’s 
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argument is that trial counsel “was ineffective for failing to investigate and 

interview witnesses, including an alibi witness[, Karielis Colon.]” (Id. at 

18-21.) We disagree.

A claim that counsel was ineffective for failing to investigate potential 

witnesses or call them to testify at trial requires a petitioner to establish that:

(1) the witness existed; (2) the witness was available 

to testify for the defense; (3) counsel knew of, or 

should have known of, the existence of the witness; 

(4) the witness was willing to testify for the defense; 

and (5) the absence of the testimony of the witness 

was so prejudicial as to have denied the defendant a 

fair trial.

Commonwealth v. Matias, 63 A.3d 807, 810-811 (Pa.Super. 2013) 

(en banc) (citation omitted), appeal denied, 74 A.3d 1030 (Pa. 2013).

Here, the record reflects that trial counsel testified at great length at the 

April 21, 2015 hearing on his general strategy with regard to presenting alibi 

witnesses:

It varies by what’s being presented to me. If 

somebody looks at me and says I have alibi 

witnesses and here they are, and they’re listing 

two or three alibi witnesses, I’m gonna look at 

it a little more conscientiously than when 

somebody tells me that their girlfriend or their 

wife can act as an alibi for where they were two 

or three years before.

If you -- it’s a difference. But you find out what 

it is the witness is going to say. Then you have 

to make a determination in your own mind of 

whether or not based on your experience that’s 

something that might fly with the jury.
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I’ve had very good success with alibi witnesses 

when people can come in and give me, say, four

people who could testify as to what they were 

doing at 9:15 on Thursday night, 

December 23rd, because on that particular 

night they were all together at grandmother’s

birthday party or at some specific family event.

Alibi witnesses can be real good if you’re talking 

about a 4th of July family reunion or something,

or when you’ve been on a vacation together, 

something like this. Because when you have 

those things, there’s a reason for the person to 

have that date in their mind and a reason to 

have that event in their mind.

When somebody comes in and just says he

couldn’t have done it, he was with me two years 

ago, and when they haven’t said anything 

throughout that period of time to anybody at all 

until well after the period of credibility is passed, 

I think it’s less likely that that’s going to be 

acceptable to a jury.

Notes of testimony, 4/21/15 at 74-75. Trial counsel further noted that in 

preparing a defense for a client, his general practice is to “review discovery, 

study discovery, [and] get ready to go to trial.” (Id. at 74.) 

Trial counsel testified that he did not specifically recall speaking with 

either appellant or Colon regarding Colon’s willingness to testify as an alibi 

witness and denied ignoring Colon’s repeated attempts to contact him via text 

message. (Id. at 69-70, 76-77.) Trial counsel further opined that it was his 

belief “that what was being said by the witnesses in those police reports was 

sufficient to make the case triable,” and in any event, he would have forgone 
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calling Colon as an alibi witness given the concerns he had with her credibility. 

(Id. at 70, 76.) 

Q. So you were indicating right now that if you had 

talked to [Colon] you probably would have not 

have put her on the stand based on --

A. Based on what I’ve heard here today. Because 

the experience that we have is you put the 

witness on the stand, they testify, and then it’s 

specific -- more specifics that the prosecution 

wants to hear. What were you doing with him? 

Who was --

. . . .

A. So there’s a good bit of time that has passed,

and it’s always been my belief that offering an 

alibi witness who’s deemed to be incredible by 

a jury is a major mistake. If they don’t believe 

that witness, now they start to believe not only 

might the person be guilty but person is taking 

the steps to have loved ones come in to 

fabricate stories. And from a juror’s point of 

view, that well might be where they end up 

accepting anything that you’re offering. So I

tend not to do that.

Id. at 72-73.

“[G]enerally, where matters of strategy and tactics are concerned, 

counsel’s assistance is deemed constitutionally effective if he chose a 

particular course that had some reasonable basis designed to effectuate his 

client’s interests.” Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 

2012). “If counsel’s chosen course had some reasonable basis, the inquiry 

ends and counsel’s assistance is deemed effective.” Commonwealth v. 

Williams, 899 A.2d 1060, 1064 (Pa. 2006). Based on the foregoing, we find 
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that trial counsel had a reasonable strategic basis for electing not to call Colon 

as an alibi witness and appellant was not prejudiced by her failure to testify. 

Accordingly, appellant has failed to satisfy the second and third prongs of the 

ineffectiveness test, and his claim must fail. See Charleston, 94 A.3d at 

1020.

More importantly, the record reflects that Colon testified at length at the 

April 21, 2015 evidentiary hearing, and the PCRA court specifically found her 

testimony to be not credible. (See PCRA court opinion, 10/27/17 at 5-6.)

For all the foregoing reasons, we affirm the October 27, 2017 order of 

the PCRA court.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 08/03/2018