J-S06029-17

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

v.

ROBERT CARTER,

Appellant No. 1195 EDA 2016

Appeal from the PCRA Order entered March 24, 2016,

in the Court of Common Pleas of Philadelphia County,

Criminal Division, at No(s): CP-51-CR-0007203-2011.

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

MEMORANDUM BY RANSOM, J.: FILED MAY 16, 2017

Appellant, Robert Carter, appeals pro se from the March 24, 2016 

order denying 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. On April 5, 2011, police observed 

Appellant operating a stolen car, activated their lights and sirens, and began 

following the vehicle. Instead of pulling over, Appellant ran a stop sign and 

accelerated. A high speed-chase ensued, which ultimately ended when 

Appellant hit another car and crashed into a building. Appellant’s passenger, 

who was his good friend, was ejected upon impact and died at the scene. 
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The person in the other car also suffered serious injury, as well as three 

pedestrians who were standing on the sidewalk waiting for a bus. 

On February 13, 2013, a jury convicted Appellant of third-degree 

murder, homicide by vehicle, and related charges. On April 19, 2013, the 

trial court sentenced Appellant to an aggregate term of twenty-five to fifty 

years of imprisonment. Appellant filed a post-sentence motion, which the 

trial court denied on August 6, 2013. Appellant timely filed an appeal to this 

Court, in which he challenged the sufficiency and weight of the evidence 

supporting his convictions, as well as a claim that the trial court abused its 

discretion in allowing the Commonwealth to introduce evidence that, on 

three prior occasions, he had fled from police while operating a motor 

vehicle or ATV. In an unpublished memorandum filed on July 15, 2014, we 

rejected Appellant’s claims and, therefore, affirmed his judgment of 

sentence. Commonwealth v. Carter, 105 A.3d 791 (Pa. Super. 2014) 

(unpublished memorandum). 

Appellant timely filed a PCRA petition in which he raised certain claims 

of ineffective assistance of trial counsel. After a change of appointedcounsel, PCRA counsel ultimately filed a “no-merit” letter and petition to 

withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), 

and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).1 

____________________________________________

1 Originally-appointed counsel filed a Turner/Finley letter, that the PCRA 

court deemed inadequate. The PCRA court permitted that counsel to 

(Footnote Continued Next Page)
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On February 22, 2016, the PCRA court issued Pa.R.Crim.P. 907 notice of 

intent to dismiss Appellant’s PCRA petition without a hearing. Appellant did 

not file a response. By order entered March 24, 2016, the PCRA court 

dismissed Appellant’s PCRA petition. This appeal follows. Both Appellant 

and the PCRA court have complied with Pa.R.A.P. 1925.

Within his brief, Appellant asserts that the PCRA court erred in denying 

his PCRA petition without first holding an evidentiary hearing because he 

raised a genuine issue of material fact as to whether trial counsel was 

ineffective for failing to: 1) object to the nolle prosequi of the involuntary 

manslaughter charge and request that the jury be instructed on this lesserincluded offense; 2) investigate and present witnesses on his behalf; 3) 

object to his removal from the courtroom without the trial court conducting a 

colloquy to ensure that the waiver of his presence was knowing and 

intelligent; 4) object to the autopsy report when the coroner who conducted 

the autopsy did not testify at trial; 5) object when inadmissible hearsay was 

introduced at trial and submitted to the jury to consider in establishing 

malice; 6) object when evidence of prior bad acts was admitted where such 

bad acts were actually dismissed and therefore inadmissible; and 7) to file a 

pre-trial motion asserting the violation of his speedy trial rights. See 

Appellant’s Brief at 4. We will address these claims in the order presented.

(Footnote Continued) _______________________

withdraw and appointed PCRA counsel. See PCRA Court Opinion, 6/20/16, 

at 1-2.
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When examining a post-conviction court's grant or denial of relief, we 

are limited to determining whether the court's findings were supported by 

the record and whether the court's order is otherwise free of legal error. 

Commonwealth v. Quaranibal, 763 A.2d 941, 942 (Pa. Super. 2000). We 

will not disturb findings that are supported in the record. Id. The PCRA 

provides no absolute right to a hearing, and the post-conviction court may 

elect to dismiss a petition after thoroughly reviewing the claims presented 

and determining that they are utterly without support in the record. Id.

Because Appellant’s claims challenge the stewardship of trial 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 

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). 
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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 

object to the withdrawal of the involuntary manslaughter charge and for 

failing to request that the jury be instructed on that crime because it is a 

lesser included offense of homicide by vehicle. 

This Court has summarized:

There is no requirement for the trial judge to instruct 

the jury pursuant to every request made to the court. In 

deciding whether a trial court erred in refusing to give a 

jury instruction, we must determine whether the court 

abused its discretion or committed an error of law.

A defendant is entitled to a [jury] charge on a lesserincluded offense only where the evidence has been made 

an issue in the case and the evidence would 

reasonably support such a verdict. Instructions 

regarding matters which are not before the court or which 

are not supported by the evidence serve no purpose other 

than to confuse the jury.
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Commonwealth v. Phillips, 946 A.2d 103, 110 (Pa. Super. 2008) 

(citations omitted). “An offense may be considered a lesser included offense 

if each and every element of the lesser offense is necessarily an element of 

the greater offense.” Commonwealth v. Brandon, 79 A.3d 1192, 1194 

(Pa. Super. 2013).

Here, the PCRA court determined that the evidence presented would 

not support an involuntary manslaughter conviction:

In order to establish that [Appellant] was guilty of 

homicide by vehicle, the Commonwealth was required to 

prove that [he] caused the death of [the victim] by acting 

recklessly or with gross negligence, while violating any law 

or ordinance applying to the operation of a motor vehicle. 

75 Pa.C.S. § 3732; Commonwealth v. Pedota, 64 A.3d 

634 636 (Pa. Super. 2013). In order to establish that 

[Appellant] was guilty of involuntary manslaughter, the 

Commonwealth would have to prove that [he] caused the 

death of [the victim] by doing an act in a reckless or 

grossly negligent manner. 18 Pa.C.S. § 2504(a); Pedota, 

64 A.3d at 636. Therefore, homicide by vehicle includes all 

the elements of involuntary manslaughter, plus the 

additional requirement that the death was caused while 

violating the [Vehicle Code]. Accordingly, trial counsel 

would have been entitled to request that involuntary 

manslaughter be submitted to the jury if a reasonable 

juror could have found [Appellant] guilty of involuntary 

manslaughter but not guilty of homicide by vehicle. 

The evidence at trial, however, clearly established the 

contrary. In particular, there was overwhelming evidence 

that [Appellant’s] reckless and grossly negligent conduct 

consisted of multiple violations of the [Vehicle Code].

***

[T]he evidence demonstrated that [Appellant] recklessly 

and with gross negligence caused [the victim’s] death by 

driving through a red light at a high rate of speed, thereby 

violating the laws applying to a motor vehicle. Because no 
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reasonable juror could have found [Appellant] guilty of 

involuntary manslaughter, but not guilty of homicide by 

vehicle, any request by trial counsel to submit the 

involuntary manslaughter charge to the jury would have 

been rejected.

PCRA Court Opinion, 6/20/16, at 6-7.

Our review of the evidence presented at trial supports the PCRA 

court’s conclusions. Trial counsel cannot be found ineffective for pursuing a 

meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 

2003) (en banc). Thus, Appellant’s first issue fails.

In his second issue, Appellant claims that trial counsel was ineffective 

for failing to call the victim’s sister to testify on his behalf. See Appellant’s 

Brief at 15. In order to establish that trial counsel was ineffective for failing 

to investigate and/or call a witness at trial, a PCRA petitioner must 

demonstrate that: 

(1) the witness existed; (2) the witness was available; (3) 

trial counsel was informed of the existence of the witness or 

should have known of the witness’s existence; (4) the 

witness was prepared to cooperate and would have testified 

on appellant’s behalf; and (5) the absence of the testimony 

prejudiced appellant.

Commonwealth v. Hall, 867 A.2d 619, 629 (Pa. Super. 2005).

During the final day of the proceedings, trial counsel informed the 

court that she had been approached by members of the victim’s family, and 

that the victim’s sister “has requested to testify during the trial regarding 

the relationship between the two.” N.T., 2/13/13, at 82. The trial court 

agreed with trial counsel’s assessment that such testimony was 
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“inappropriate” and more relevant as a victim impact statement at 

sentencing. Id. The trial court then informed the victim’s sister that she 

had no relevant evidence for trial, but that she could testify at sentencing. 

See id. at 83. Given these circumstances, the only Hall factor at issue is 

whether the absence of testimony from the victim’s sister prejudiced 

Appellant. According to Appellant, “[h]ad the jury been provided the 

opportunity to consider [his] friendship with the [victim] coming from a 

victim herself, a reasonable probability exists that the results would have 

been different.” Appellant’s Brief at 15.

The PCRA court found no merit to Appellant’s claim:

[A]ny evidence regarding [Appellant’s] relationship with 

the [victim] would have been irrelevant. The [victim] was 

a passenger in a car being recklessly driven by [Appellant] 

at the time of the crash that led to the charges in this 

case. There was never any contention that [Appellant] 

intended to harm the [victim]. Therefore, evidence of a 

close relationship between [Appellant] and the [victim] 

would not, in any manner, have refuted the 

Commonwealth’s case.

PCRA Court Opinion, 6/20/16, at 8. We agree. Moreover, after reading the 

trial transcripts, it is clear that the jury was aware, via arguments made by 

both the prosecutor and trial counsel, that Appellant and the victim were 

good friends. See, e.g., N.T., 2/11/13, at 223 (in opening to the jury, the 

prosecutor asserts the circumstances ultimately resulting in the victim’s 

death “started out for [Appellant] and his friend as a joy ride in a stolen 

vehicle”); N.T., 2/13/13 at 90 (in closing to the jury, trial counsel states that 
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“two young guys out in a fancy Acura, driving around for a joy ride” ends up 

in a tragic accident where “one of the people in the car, who is good friends 

with [Appellant], is deceased”). Once again, trial counsel cannot be faulted 

for failing to pursue this meritless claim. Loner, supra. 

In his third issue, Appellant asserts that trial counsel was ineffective 

for failing to object when he was removed from the courtroom without the 

trial court first conducting a waiver colloquy. We agree with the PCRA 

court’s conclusion that this claim is waived because it does not appear in 

Appellant’s pro se petition, or in a Pa.R.Crim.P. 907 response, and is thus 

inappropriately raised for the first time on appeal. See generally, Pa.R.A.P. 

302(a); Commonwealth v. Rigg, 84 A.3d 1080, 1084-85 (Pa. Super. 

2014). Appellant’s attempt to circumvent waiver by alleging a “layered 

ineffectiveness claim” with regard to his first-court appointed post-conviction 

counsel, see n.1, is unavailing. See Appellant’s Brief at 16. The fault for 

failing to raise this claim via his original petition, or in response to the PCRA 

court’s Pa.R.Crim.P. 907 notice, lies wholly upon Appellant himself. 

Moreover, Appellant’s claim is specious. A review of the record reveals 

that the only reason no colloquy was conducted was because Appellant 

refused to respond to the trial court’s attempt to provide him with one. See 

N.T., 2/13/13, at 41-42. Nevertheless, the record also establishes that 

Appellant was moved to the back of the courtroom where he could hear the 

proceedings, and that he decided to return to the courtroom prior to the 
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court’s charge to the jury. See id., at 45-47; 142-143. Thus, Appellant’s 

third issue fails.

In his fourth issue, Appellant argues that trial counsel was ineffective 

for failing to object to the admission of the autopsy report introduced 

through the testimony of a forensic pathologist, because the report was 

introduced to establish an element of the crimes charged, but the author of 

the report did not testify. According to Appellant, his inability to crossexamine the coroner who conducted the autopsy violated his rights under 

the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. 

See Appellant’s Brief at 17-19.

The PCRA court found Appellant’s ineffectiveness claim to lack 

arguable merit:

Under Pennsylvania law, a medical examiner who did 

not perform the autopsy at issue in the case may still 

testify as to the cause and manner of death provided that 

the testifying expert is qualified and sufficiently informed 

so as to be able to render his or her own opinion. 

Commonwealth v. Buford, 101 A.3d 1182, 1198 (Pa. 

Super. 2014) (citing Commonwealth v. Ali, 10 A.3d 282, 

306-307 (Pa. 2010)). Here, Dr. Allison Hunt, performed 

[the victim’s] autopsy, but was no longer employed by the 

Philadelphia Medical Examiner’s Office by the time of 

[Appellant’s] trial. N.T., 2/13/13 at 55. As a result, Dr. 

Aaron Rosen reviewed Dr. Hunt’s report, as well as 

autopsy photos and toxicology reports. N.T., 2/13/13 at 

54-55. Dr. Rosen testified that, after reviewing these 

materials, he formed his own, independent opinions and 

conclusions regarding [the victim’s] death. N.T., 2/13/13 

at 55. Although Dr. Hunt’s report was reviewed by Dr. 

Rosen and admitted into evidence, Dr. Rosen never 

revealed any of Dr. Hunt’s opinions or conclusions and the 

report was never presented to the jury. Because Dr. 
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Rosen reached his own independent conclusions regarding 

cause and manner of death after reviewing the materials in 

the file, his opinions were properly admitted even though 

Dr. Hunt had performed the autopsy. Buford, 101 A.3d at 

1198.

PCRA Court’s Opinion, at 9-10. We agree with the PCRA court’s conclusions 

that Appellant’s underlying claim regarding the autopsy report is meritless. 

Thus, trial counsel cannot be deemed to be ineffective for failing to object to 

this admissible evidence. Loner, supra.

In his fifth issue, Appellant argues that trial counsel was ineffective for 

failing to object when inadmissible hearsay was introduced to the jury to 

consider in establishing malice. According to Appellant:

[He] has a 5th Amendment Right to remain silent and 

not be a witness against himself. This right was stripped 

when the Commonwealth called Matthew Gavula to testify. 

Gavula testified to a statement purportedly made by 

Appellant which the jury was instructed to consider in 

determining the mens rea of Appellant on the most serious 

offense, third degree murder. Trial counsel failed to object 

and thus, prejudiced Appellant as he was convicted on 

inadmissible hearsay.

Appellant’s Brief at 19. 

Matthew Gavula was one of the first responders that spoke with 

Appellant upon arriving at the crash scene. Mr. Gavula was the first witness 

called by the Commonwealth and testified that when he asked Appellant 

what happened, a “[t]ypical question on an accident scene,” Appellant 

responded, “They were chasing me.” N.T., 2/11/13, at 268. Mr. Gavula 

then asked Appellant to whom he was referring, and Appellant stated “[t]he 
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police.” Id. Trial counsel did not object to this testimony, and she did not 

question Mr. Gavula further regarding Appellant’s statement.

The PCRA court found no merit to Appellant’s claim because Mr. 

Gavula’s testimony was not inadmissible:

Out-of-court statements made by a party offered 

against that party at trial are admissible under an 

exception to the hearsay rule. Pa.R.E. 803(25). As the 

statement at issue was made by [Appellant], and offered 

by the Commonwealth, its admission did not contravene 

the hearsay rule. Id.

PCRA Court Opinion, 6/20/16, at 10-11. We agree with the PCRA court’s 

conclusion. Appellant’s statement to Mr. Gavula qualified as an “admission 

of a party opponent” under the exception to the hearsay rule. See Pa.R.E. 

803(25); Commonwealth v. Weiss, 81 A.3d 767, 800 (Pa. 2013) 

(explaining witness’s testimony that the defendant threatened to shoot the 

police if they knocked at his door was admissible under Pa.R.E. 803(25)). 

Thus, because trial counsel cannot be deemed ineffective for failing to raise 

a meritless objection, Loner, supra, Appellant’s fifth issue fails.

In his sixth issue, Appellant argues that trial counsel was ineffective 

for failing to object to the Commonwealth’s admission of evidence of a prior 

bad act committed by Appellant in 2007 because that proceeding was 

dismissed in its entirety. See Appellant’s Brief at 20. Our review of the 

record supports the PCRA court’s conclusion that this claim is waived 

because it was not raised in Appellant’s pro se petition or in response to the 

PCRA court’s Pa.R.Crim.P. 907 notice. See PCRA Court Opinion, 6/20/16, at 
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11 (citing Rigg, supra). Nevertheless, we note that this Court rejected 

Appellant’s challenge to the admissibility of these prior incidents into 

evidence. See Carter, supra, memorandum opinion at 10-13. Thus, the 

claim has been previously litigated under the PCRA, see 42 Pa.C.S.A. § 

9544(a), and Appellant’s sixth claim fails.

In his final issue, Appellant asserts that trial counsel was ineffective for 

failing to file a pretrial motion asserting that his right to a speedy trial under 

Pa.R.Crim.P. 600 was violated. Once again, our review of the record 

supports the PCRA’s court’s conclusion that this claim was not preserved 

below and, therefore, is inappropriately being raised for the first time on 

appeal. See PCRA Court Opinion, 6/20/16, at 11 (citing Rigg, supra).

In sum, Appellant’s seven claims of trial court’s ineffectiveness are 

either without merit, refuted by the record, or waived. Thus, the PCRA court 

did not err or abuse its discretion in failing to schedule an evidentiary 

hearing. We therefore affirm the PCRA court’s order dismissing Appellant’s 

PCRA petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/16/2017