J-S94016-16

* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

IZEL WALTER GARRETT,

Appellant No. 154 MDA 2016

Appeal from the PCRA Order entered December 18, 2015,

in the Court of Common Pleas of Luzerne County,

Criminal Division, at No(s): CP-40-CR-0000761-2011.

BEFORE: LAZARUS, RANSOM, and FITZGERALD,* JJ.

MEMORANDUM BY RANSOM, J.: FILED MARCH 10, 2017

Appellant, Izel Walter Garrett appeals from the December 18, 2015 

order denying his motion for funds to hire a ballistics expert, as well as his 

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. 

§§ 9541-9546. We affirm. 

The pertinent facts and procedural history, as gleaned from our review 

of the certified record, are as follows. Police charged Appellant, his brother, 

Isiah Garrett (“Isiah”), and their cousin Tyrek Smith (“Smith”), with 

multiple crimes, including criminal homicide and conspiracy to rob Abdul 

Shabazz (“the victim”), during a drug transaction in Hazelton, Pennsylvania 

on December 6, 2011. Although the three men gave various accounts of 

how the transaction occurred, the victim was shot twice during the exchange 

and ran out of the apartment. He was able to call 911 for assistance, was 
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still alive when help arrived, but subsequently was pronounced dead a 

nearby hospital.

After an evidentiary hearing, the trial court denied Appellant’s pretrial 

motion to suppress statements he made to police following his arrest. 

Smith pled guilty to the robbery charge and testified for the Commonwealth 

at the joint trial of Appellant and Isiah that was held over three days in 

December 2011. When questioned, Smith gave multiple versions of what 

occurred to the police, at first claiming nothing happened, then identifying 

Appellant’s girlfriend, who was also present in the apartment, as the 

shooter, and finally identifying Appellant as the shooter. At trial, Smith 

testified in more detail concerning the drug transaction and the position of 

the parties prior to the shooting. He testified that Appellant gave the victim 

counterfeit money and the victim began to look closely at the money. 

According to Smith, Appellant then pulled out a silver revolver, pointed it at 

the victim while ordering him to the floor, and then shot the victim once in 

the abdomen and once in the left arm. Smith testified that he was seated in 

a chair directly across from the victim when he appeared at the door of the 

apartment, while both Appellant and Isiah were standing up and to the left 

of the victim.

Dr. Gary W. Ross, a forensic pathologist who conducted the victim’s 

autopsy, testified that the shot to the victim’s arm was only a graze wound, 

but that the shot to the “left upper abdomen” was lethal. N.T., 12/14/11, at 

343. He testified that that bullet “entered the abdomen on the [victim’s] 
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left side, went through the spleen, the large bowel, the small bowel, the 

stomach, the pancreas, the liver, through the diaphragm and they [sic] the 

bullet in the right chest muscular wall.” N.T., 12/14/11, at 340. As to the 

bullet’s trajectory, Dr. Ross testified that it traveled “from left to right, front 

to back, and slightly upward.” Id. at 349. 

At trial, there were two firearms introduced as evidence—a silver 

Taurus .38 revolver, and a black Colt .38 revolver. Smith testified that 

Appellant shot the victim with the silver revolver. In their statements to 

police both Appellant and Isiah told police that Smith shot the victim using 

the black revolver. Following a search of their mother’s apartment, the 

loaded black revolver was found in Appellant’s bedroom, while the silver 

revolver was found in Isiah’s bedroom. In addition, police found two spent 

shell casings from the silver revolver on a dresser or table in Appellant’s 

bedroom. Expert testimony at trial established that the silver revolver was 

the murder weapon and that the two shell casings came from the silver 

revolver.

Ultimately, the jury found both Appellant and Isiah guilty of seconddegree murder, robbery, conspiracy, and a firearm violation. Appellant was 

sentenced to life imprisonment for the murder conviction. Appellant filed a 

timely appeal to this Court. In an unpublished memorandum filed on July 

12, 2013, we rejected Appellant’s challenge to the denial of his suppression 

motion, and therefore affirmed his judgment of sentence. Commonwealth 

v. Garrett, No. 694 MDA 2012. 
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Appellant filed a timely pro se PCRA petition in which he claimed trial 

counsel was ineffective for failing to obtain an independent ballistics expert. 

The PCRA court appointed counsel, and PCRA counsel filed a motion to 

provide funds to hire a ballistic expert on Appellant’s behalf. Within this 

motion, PCRA counsel averred that, he had contacted Fred Wentling, a 

ballistics and firearm examiner in Lancaster, Pennsylvania, who was willing 

to examine the evidence and offer an expert opinion as to who fired the fatal 

shots, if such funds were granted. Isiah filed a similar PCRA petition and 

joined in Appellant’s motion for funds. On August 13, 2015, the PCRA court 

held an evidentiary hearing to resolve both matters. Appellant and Isiah 

both testified, as did their respective trial counsel. At the conclusion of the 

hearing, the PCRA court took the matter under advisement and requested 

that the parties file briefs. By order entered December 18, 2015, the PCRA 

court denied both PCRA petitions and the joint motion for funds. Appellant 

timely filed this appeal.1 Both Appellant and the PCRA court have complied 

with Pa.R.A.P. 1925.

Appellant raises the following issues:

A. Whether trial counsel was ineffective in failing to 

request a ballistics expert to examine the guns, the 

victim’s clothing, autopsy report and photograph[s], 

casings and bullet hole in the wall to determine where 

____________________________________________

1

Isiah also filed a timely appeal found at No. 155 MDA 2016.
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the shooter was located at the time of the two 

gunshots?

B. Whether the PCRA court abused its discretion in denying 

[Appellant’s] motion to provide funding for a ballistics 

expert?

Appellant’s Brief at 4 (excess capitalization removed).

This Court has recently reiterated:

On appeal from the denial of PCRA relief, our standard and scope 

of review is limited to determining whether the PCRA court’s 

findings are supported by the record and without legal error. 

Our scope of review is limited to the findings of the PCRA court 

and the evidence of record, viewed in the light most favorable to 

the prevailing party at the PCRA court level. The PCRA court’s 

credibility determinations, when supported by the record, are 

binding on this Court. However, this Court applies a de novo 

standard of review to the PCRA court’s legal conclusions.

Commonwealth v. Medina, 92 A.3d 1210, 1214-15 (Pa. Super. 2014)

(citations omitted).

Because Appellant’s claim challenges the stewardship of prior counsel, 

we apply the following principles. The law presumes counsel has rendered 

effective assistance. Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. 

Super. 2010). The burden of demonstrating ineffectiveness rests on 

Appellant. Id. To satisfy this burden, Appellant must plead and prove by a 

preponderance of the evidence that: “(1) his underlying claim is of arguable 

merit; (2) the particular course of conduct pursued by counsel did not have 

some reasonable basis designed to effectuate his interests; and, (3) but for 

counsel’s ineffectiveness, there is a reasonably probability that the outcome 

of the challenged proceedings would have been different.” Commonwealth 
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v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of the 

test will result in rejection of the appellant’s ineffective assistance of counsel 

claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002). 

In assessing a claim of ineffectiveness, when it is clear that appellant 

has failed to meet the prejudice prong, the court may dispose of the claim 

on that basis alone, without a determination of whether the first two prongs 

have been met. Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 

1995). Counsel will not be deemed ineffective if any reasonable basis exists 

for counsel's actions. Commonwealth v. Douglas, 645 A.2d 226, 231 (Pa. 

1994). Even if counsel had no reasonable basis for the course of conduct 

pursued, however, an appellant is not entitled to relief if he fails to 

demonstrate the requisite prejudice which is necessary under Pennsylvania's 

ineffectiveness standard. Douglas, 645 A.2d at 232. 

Appellant first claims that trial counsel was ineffective for failing to 

have an independent ballistics expert testify at trial. According to Appellant:

There was no dispute as to the location of Smith at the 

moment of the shooting. He was sitting in a chair in front 

of the door. [Appellant and Isiah] were standing. Dr. 

Ross, the forensic pathologist, testified that the path of the 

bullet was from entry into the lower abdomen by going 

upward through the gastrointestinal system. This implied 

the shooter may have been sitting.

[Appellant] contends that the testimony of a ballistics 

expert, who based upon his knowledge of bullets, 

weapons, and trajectory could have identified the location 

of the shooter is imperative to his case. If a ballistics 

expert could state dispositively [sic] that the bullet was 

fired from Smith’s sitting position, this would have 
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demonstrated to a jury that he was lying about [Appellant] 

and [Isiah’s] role in the shooting.

Trial Counsel admitted that his strategy was to impeach 

Smith. This scientific evidence was the best possible 

impeachment evidence, and clearly was more than 

cumulative. There could have been no reasonable trial 

strategy that did not include using a ballistics expert to 

impeach Smith.

Appellant’s Brief at 20-21.

The standards that we apply when reviewing a claim regarding the 

failure to call an expert at trial is well settled:

In order to demonstrate counsel’s ineffectiveness for failing 

to call a witness, a petitioner must prove that “the 

witness[] existed, the witness [was] ready and willing to 

testify and the absence of the witness[’] testimony 

prejudiced petitioner and denied him a fair trial.” 

[Commonwealth v. Johnson, 27 A.3d 244, 247 (Pa. 

Super. 2011)] (internal citation omitted). In particular, 

when challenging trial counsel’s failure to produce expert 

testimony, “the defendant must articulate what evidence 

was available and identify the witness who was willing to 

offer such evidence. Commonwealth v. Bryant, 579 Pa. 

119, 855 A.2d 726, 745 (2004) (internal citation omitted). 

Also, [t]rial 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.” Commonwealth v. Copenhefer, 553 Pa. 

285, 719 A.2d 242, 253 (1998); accord Commonwealth 

v. Williams, 537 Pa. 1, 640 A.2d 1251, 1265 (1994). 

Finally, “trial counsel will not be deemed ineffective for 

failing to call a medical, forensic, or scientific expert 

merely to critically evaluate expert testimony which was 

presented by the prosecution. Copenhefer, 719 A.2d at 

253, n.12.

Commonwealth v. Luster, 71 A.3d 1029, 1047 (Pa. Super. 2013) (en 

banc).
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After hearing the testimony at the evidentiary hearing, the PCRA court 

concluded that Appellant failed to establish his ineffectiveness claim. The 

PCRA court summarized the relevant testimony as follows:

[Trial counsel] testified that the trial strategy was to 

discredit [Smith]. [Smith] had given various inconsistent 

statements and the strategy was to question his credibility. 

[Trial counsel] was asked during the course of considering 

discrediting the witnesses [sic] whether the parties 

considered employing a ballistics expert to examine the 

trajectory of the bullets that were fired. [Trial counsel] 

said they did not because the overall evidence did not 

justify such a course of action. The best chance to 

exonerate [Appellant], according to [trial counsel], was 

through a suppression motion. [Trial counsel] testified 

that his review of the case was that the evidence was 

overwhelming against [Appellant]. His only hope was the 

suppression motion and some inconsistent statements.

[Appellant] testified that he did not have discussions 

with [trial counsel] about procuring a ballistics expert. If 

he had, [Appellant] would have wanted one to testify to 

prove that the testimony would have bolstered the 

strategy of discrediting [Smith]. It is [Appellant’s] belief 

that the ballistics expert could have determined where the 

bullet was fired from.

PCRA Court’s Opinion, 3/21/16, at 2.

The PCRA court then reasoned:

[T]he evidence showed that the victim was killed by a 

bullet. During the trial [Smith] testified as to his position 

which is exactly what [Appellant says] he was in when the 

victim was shot. Because his positioning [was] not 

disputed, it follows that that the jury apparently believed 

that he was not the shooter and deemed him credible.

At trial, the testimony of Dr. Ross, the forensic 

pathologist, regarding the trajectory of the victim’s wounds 

[sic] was that the fatal bullet traveled “from left to right, 

front to back, and slightly upwards.” [N.T., 12/14/11, at 
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349]. As the Commonwealth argued, to make the 

determination of who was the actual shooter rather than 

the path of the bullet, an expert would have to rely on 

some witness’s description of the scene. The ballistic[s] 

expert would have done nothing to change the outcome of 

the case.

PCRA Court’s Opinion, 3/21/16, at 4-5.

Our review of the record supports the PCRA court’s determination. 

Initially, as noted by the PCRA court, it was undisputed at trial that Smith 

was seated across from the victim when he appeared at the apartment door. 

Although it was also undisputed at trial that the bullet traveled at a “slightly 

upward” trajectory, the expert first testified that the trajectory of bullet was 

“left to right.” In closing to the jury, the prosecutor argued that if the bullet 

was fired from directly across where Smith was sitting, the bullet would not 

have gone “from [the victim’s] left to right, slightly upward[.] It’s going to 

go front to back.” N.T., 12/15/11, at 568.

Moreover, even assuming that Appellant’s proposed expert would be 

able to testify as to the exact location of the shooter, the PCRA court found 

that Appellant did not suffer prejudice, given the totality of the evidence. 

Once Appellant’s suppression motion was denied, his statements made to 

police were admitted at trial. According to Appellant, Smith fired the black 

revolver, rather the murder weapon. In addition, the police found both 

revolvers at Appellant’s residence, and the two spent bullet casings from the 

murder weapon were found in his bedroom. Given the totality of this 

evidence, Appellant failed to establish that the outcome of his trial would 
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have been different had a ballistics expert testified about the location from 

which the victim was shot. Any such expert testimony could not refute the 

fact that the murder weapon and the spent bullet casings were found in 

Appellant’s residence. As noted above, trial counsel cannot be deemed 

ineffective for failing to pursue a meritless claim. Loner, supra.

Given this conclusion, Appellant’s remaining claim that the PCRA court 

abused its discretion in failing to grant funds to hire a ballistics expert 

likewise fails. See, e.g., Commonwealth v. Reid, 99 A.3d 470, 506 (Pa. 

2014) (concluding that the PCRA court did not abuse its discretion in denying 

request for funds to retain a ballistics expert). In sum, because the PCRA 

court correctly determined that Appellant failed to establish his 

ineffectiveness of counsel claim, we affirm its order denying post-conviction 

relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/10/2017