J-S20045-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

MASSAI SHAWN DICKEY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 687 WDA 2021

Appeal from the PCRA Order Entered May 17, 2021

In the Court of Common Pleas of Cambria County

Criminal Division at No(s): CP-11-CR-0001385-2015

BEFORE: NICHOLS, J., MURRAY, J., and KING, J.

MEMORANDUM BY KING, J.: FILED: September 29, 2022 

Appellant, Massai Shawn Dickey, appeals from the order entered in the 

Cambria County Court of Common Pleas, which dismissed his first petition 

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

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

history of this appeal as follows:

On April 30, 2015, a search warrant was executed by the 

Safe Street Task Force[, a joint federal, state and local 

effort,] at 1127 Riffith Street in Stonycreek Township, 

Pennsylvania. As a group of eight to ten officers arrived at 

the residence to execute the warrant, a sizeable group of 

people were encountered exiting through the front door. 

[Appellant] was one of [the] people [the officers] 

encountered at this time. In one of the upstairs bedrooms 

of the residence, a Wilson’s brown leather jacket was found 

by Special Agent (Ret.) Arnold Bernard of the Federal 

Bureau of Investigation. Inside the pocket of the jacket was 

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1 42 Pa.C.S.A. §§ 9541-9546. 
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a Taurus .38 caliber firearm. Inside a safe located in a closet 

of the same room, officers recovered an Erma .22 caliber 

firearm. A bedroom dresser in the same room contained 

photographs depicting [Appellant], a hotel receipt with 

[Appellant’s] name on it and two traffic citations issued to 

[Appellant]. [Appellant] was arrested and charged with,

inter alia, two counts of Persons Not to Possess a Firearm[.] 

After a two-day jury trial on January 25-26, 2017, 

[Appellant] was found guilty of one count (the jury convicted 

him of possessing the Taurus firearm and acquitted him of 

the Erma firearm). On February 21, 2017, the [c]ourt 

sentenced [Appellant] to a period of five (5) to ten (10) 

years in a State Correctional Institution. 

Commonwealth v. Dickey, No. 678 WDA 2017, unpublished memorandum 

at 1-2 (Pa.Super. filed Feb. 28, 2018) (quoting Trial Court Opinion, filed 

4/21/17, at 1-2).

This Court affirmed the judgment of sentence on February 28, 2018, 

and Appellant did not seek further review with our Supreme Court. On 

February 20, 2019, Appellant timely filed a pro se PCRA petition. The court 

appointed counsel, who filed an amended petition on April 30, 2019. In it, 

Appellant argued trial counsel was ineffective for failing to call a police witness. 

On September 5, 2019, Appellant filed a counseled supplement to the 

amended petition. Therein, Appellant raised an additional ineffectiveness 

claim based upon trial counsel’s failure to file a petition for allowance of appeal

following the denial of relief in this Court. 

After several continuances, the PCRA court conducted an evidentiary 

hearing on January 14, 2021. At that time, the court received testimony from 

Appellant and trial counsel. On May 17, 2021, the court dismissed Appellant’s 
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PCRA petition. Appellant timely filed a notice of appeal on June 7, 2021. That 

same day, the PCRA court ordered Appellant to file a Pa.R.A.P. 1925(b) 

concise statement of errors complained of on appeal. Appellant timely filed 

his Rule 1925(b) statement on June 14, 2021. 

Appellant raises two issues for our review:

Whether the PCRA court erred/abused its discretion by 

failing to find trial counsel ineffective for failing to call 

witness Detective Justin Arcurio on [Appellant’s] behalf? 

Whether the PCRA court erred/abused its discretion by 

failing to find [Appellant’s] trial counsel [in]effective for 

failing to seek an appeal to the Pennsylvania Supreme 

Court, when [Appellant] had requested that his appeal be 

fully litigated? 

(Appellant’s Brief at 4).

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

examining whether the evidence of record supports the court’s determination 

and whether its decision is free of legal error.” Commonwealth v. Beatty, 

207 A.3d 957, 960-61 (Pa.Super. 2019), appeal denied, 655 Pa. 482, 218 

A.3d 850 (2019). “[W]e review the court’s legal conclusions de novo.” 

Commonwealth v. Prater, 256 A.3d 1274, 1282 (Pa.Super. 2021), appeal 

denied, ___ Pa. ___, 268 A.3d 386 (2021). 

Traditionally, credibility issues are resolved by the trier of 

fact who had the opportunity to observe the witnesses’

demeanor. A PCRA court passes on witness credibility at 

PCRA hearings, and its credibility determinations should be 

provided great deference by reviewing courts. 

Beatty, supra at 961 (internal citations and quotation marks omitted). 
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In his first issue, Appellant argues trial counsel “failed to investigate, 

interview, and/or call Detective Justin Arcurio as a witness at Appellant’s trial.” 

(Appellant’s Brief at 11). Appellant asserts Detective Arcurio’s testimony 

would have confirmed that another individual was present in the room where 

police discovered the firearm. Appellant claims this testimony would have 

cast doubt on the Commonwealth’s theory that Appellant constructively

possessed the firearm. Appellant also insists that Detective Arcurio’s 

testimony about another individual “would have resulted in a reasonable 

probability of acquittal.” (Id.) 

Moreover, Appellant maintains that Detective Arcurio existed and was 

available to testify at trial. Appellant submits that trial counsel knew of 

Detective Arcurio, that he would have testified on Appellant’s behalf, and that 

the absence of his testimony was prejudicial to Appellant. Based upon the 

foregoing, Appellant concludes trial counsel was ineffective for failing to call 

Detective Arcurio as a witness. We disagree. 

“Counsel is presumed to have rendered effective assistance.” 

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

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

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

defendant must show, by a preponderance of the evidence, 

ineffective assistance of counsel which, in the circumstances 

of the particular case, so undermined the truth-determining 

process that no reliable adjudication of guilt or innocence 

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

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

claim is of arguable merit; (2) that counsel had no 
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reasonable strategic basis for his or her action or inaction; 

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

a reasonable probability that the outcome of the 

proceedings would have been different. 

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

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

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

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

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

“The threshold inquiry in ineffectiveness claims is whether the 

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

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

v. Smith, 167 A.3d 782, 788 (Pa.Super. 2017), appeal denied, 645 Pa. 175, 

179 A.3d 6 (2018) (quoting Commonwealth v. Pierce, 537 Pa. 514, 524, 

645 A.2d 189, 194 (1994)). “Counsel cannot be found ineffective for failing 

to pursue a baseless or meritless claim.” Commonwealth v. Poplawski, 

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

847 A.2d 730, 733 (Pa.Super. 2004)). 

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

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

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

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

The test for deciding whether counsel had a reasonable 

basis for his action or inaction is whether no competent 

counsel would have chosen that action or inaction, or, the 
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alternative, not chosen, offered a significantly greater 

potential chance of success. Counsel’s decisions will be 

considered reasonable if they effectuated his client’s 

interests. We do not employ a hindsight analysis in 

comparing trial counsel’s actions with other efforts he may 

have taken. 

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

Sandusky, supra at 1043-44). 

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

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

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

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

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

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

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

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

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

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

For claims of ineffectiveness based upon counsel’s failure to call a 

witness: 

A defense attorney’s failure to call certain witnesses does 

not constitute per se ineffectiveness. In establishing 

whether defense counsel was ineffective for failing to call 

witnesses, a defendant must prove the witnesses existed, 

the witnesses were ready and willing to testify, and the 

absence of the witnesses’ testimony prejudiced petitioner 

and denied him a fair trial. 

Commonwealth v. Cox, 603 Pa. 223, 267-68, 983 A.2d 666, 693 (2009) 
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(internal citations omitted). A petitioner “must show how the uncalled 

witnesses’ testimony would have been beneficial under the circumstances of 

the case.” Commonwealth v. Gibson, 597 Pa. 402, 441, 951 A.2d 1110, 

1134 (2008). 

Instantly, trial counsel testified at the PCRA hearing. At that time, PCRA 

counsel commenced a line of questioning about a report prepared by Detective 

Arcurio. (See N.T. PCRA Hearing, 1/14/21, at 8-10). PCRA counsel 

emphasized the report’s finding “that there were two other individuals on the 

second floor,” near where law enforcement recovered the contraband. (Id.

at 10). Trial counsel acknowledged that he was aware of Detective Arcurio’s 

report. (Id. at 9). Nevertheless, trial counsel opted not to call the detective 

as a witness and explained: 

In this particular case, the Commonwealth’s case was built 

on ... the testimony of police officers and law enforcement. 

One of my concerns was if I would have called Detective 

Arcurio, I don’t know what he would have said. He could 

have said something against [Appellant] that could have, 

you know, not raised reasonable doubt in the eyes of the 

jury. And this is no disrespect to law enforcement, I just 

don’t want to keep calling in members of law enforcement 

and not knowing what they’re going to say as my witness. 

He would have been a hostile witness most likely. ... I was 

basing it on just asking the officers who were there at trial 

what they saw, who was in the house, who was not in the 

house. I just don’t think Detective Arcurio would have

added anything to our defense. 

(Id. at 10-11). Trial counsel added that he questioned the police witnesses

about other potential suspects at crime scene, and he “felt there was enough 

there to attack the Commonwealth’s case....” (Id. at 12). 
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The PCRA court deemed this strategy reasonable. The court emphasized 

that trial counsel’s decision could not be viewed in hindsight, and that trial 

counsel adhered to a reasonable “strategy not to call any additional law 

enforcement officers as witnesses.” (PCRA Court Opinion, filed 5/17/21, at 

8). Moreover, the court concluded that the absence of Detective Arcurio’s 

testimony was not “so prejudicial as to have denied [Appellant] a fair trial.” 

(Id.) Based upon our review, we agree with the PCRA court’s conclusion that 

trial counsel’s chosen course was designed to effectuate Appellant’s interests. 

See King, supra; Kelley, supra. Thus, the record supports the PCRA court’s 

determination, and its decision is free of legal error. See Beatty, supra. 

Consequently, Appellant is not entitled to relief on his first claim. 

In his second issue, Appellant claims he spoke with trial counsel 

immediately after trial and informed him that “he wanted to appeal[.]” 

(Appellant’s Brief at 14). Appellant “assumed” that this request evinced his 

desire to appeal to both the Pennsylvania Superior and Supreme Courts, if 

necessary. (See id.) Appellant argues that trial counsel subsequently 

informed him of this Court’s affirmance of the judgment of sentence, but

counsel did not provide additional information about seeking further review 

with our Supreme Court. Appellant maintains that he “communicated his 

desires to pursue an appeal through all avenues,” and trial counsel “should

have taken special care to preserve and pursue” a petition for allowance of 

appeal. (Id. at 15). Further, Appellant baldly asserts that there was “obvious 
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merit” to a sufficiency of the evidence claim. (Id.) Appellant concludes that 

trial counsel was ineffective for failing to pursue a petition for allowance of 

appeal with our Supreme Court. We disagree. 

This Court has explained:

[I]n presenting a PCRA claim of ineffective assistance of 

counsel for failing to file a requested petition for allowance 

of appeal, an appellant need not show that the petition 

would likely have been granted, but merely that the appeal 

was requested and counsel failed to act. [See 

Commonwealth v. Liebel, 573 Pa. 375, 383-384, 825 

A.2d 630, 635 (2003)]. In these situations, the Supreme 

Court has effectively held that the prejudice prong of the 

test for ineffective assistance has been established per se. 

See id.

On the other hand, “[b]efore a court will find ineffectiveness 

of counsel for failing to file a direct appeal, the defendant 

must prove that he requested an appeal and that counsel 

disregarded that request.” Commonwealth v. Knighten, 

742 A.2d 679, 682 (Pa.Super. 1999). Clearly, if a request 

to file a direct appeal is necessary to sustain an 

ineffectiveness claim based upon the failure to file a direct 

appeal, then such a request is also necessary where the 

alleged ineffectiveness is the failure to file a petition for 

allowance of appeal. Cf. Commonwealth v. Cooke, 852 

A.2d 340, 344 (Pa.Super. 2004) and Commonwealth v. 

Gadsden, 832 A.2d 1082, 1088 (Pa.Super. 2003) (directing 

PCRA court upon remand to determine whether appellant 

requested that petition for allowance of appeal be filed). 

Commonwealth v. Bath, 907 A.2d 619, 622 (Pa.Super. 2006), appeal 

denied, 591 Pa. 695, 918 A.2d 741 (2007). 

Where no request has been made, an appellant must 

establish that a duty to consult was owed. Under Roe and 

Touw, an appellant may establish a duty to consult by 

indicating issues that had any potential merit for further 

review. See Roe [v. Flores-Ortega, 528 U.S. 470, 480, 

120 S.Ct. 1029, 1036, 145 L.Ed.2d 985 (2000); 
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Commonwealth v. Touw, 781 A.2d 1250, 1254 

(Pa.Super. 2001)]. This does not require appellant to 

demonstrate that the Supreme Court would likely grant 

review to a petition for allowance of appeal, but only that 

appellant must show that any issue rises above frivolity. 

Bath, supra at 623-24.

Instantly, Appellant testified that trial counsel sent him a letter notifying 

him about this Court’s decision on direct appeal. Appellant claimed that this 

letter did not contain any information regarding his options for a petition for 

allowance of appeal, but he thought that trial counsel would “automatically go 

ahead to the Supreme Court.” (N.T. PCRA Hearing at 24). Despite testifying 

about the existence of this letter, Appellant failed to produce a copy of the 

letter at the hearing. (See id. at 26). 

In response, trial counsel indicated that it is his practice to send a letter 

to clients informing them about their right to pursue an appeal to our Supreme 

Court. (Id. at 15). Trial counsel could not specifically recall whether he sent 

a letter to Appellant in the instant case, but he testified that he “absolutely 

would have filed” a petition for allowance of appeal if Appellant had made a 

request. (Id. at 17). Further, trial counsel explained that he does not

automatically file a petition for allowance of appeal because he believes it is 

“more beneficial and advantageous” for his clients to begin the collateral 

review process. (Id. at 14). 

Based upon this testimony, the PCRA court found that Appellant did not

ask trial counsel to file a petition for allowance of appeal. (See PCRA Court 
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Opinion at 13). Here, the PCRA court found trial counsel credible. We grant 

deference to this finding as it is supported by the record. See Beatty, supra. 

Other than Appellant’s own, self-serving testimony, the remainder of the 

record fails to demonstrate that Appellant requested the filing of a petition for 

allowance of appeal. To the extent that the law also required Appellant to 

establish that trial counsel owed a duty to consult, Appellant’s bald assertion 

of “obvious merit” failed to show that the potential sufficiency issue rose above 

frivolity. See Bath, supra. Based upon the foregoing, Appellant is not 

entitled to relief on his second claim. Accordingly, we affirm the order 

dismissing Appellant’s PCRA petition. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/29/2022