J. S38012/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

DONTEY EDWARDS, : No. 2755 EDA 2015

:

 Appellant :

Appeal from the PCRA Order, August 28, 2015,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0006809-2009

BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 09, 2016

Dontey Edwards appeals from the order entered in the Court of 

Common Pleas of Philadelphia County that dismissed his petition filed 

pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 

(“PCRA”).

The trial court set forth the facts of this case:

On December 31, 2008, in the early afternoon, 

Eldridge Wesley (“Wesley”) was outside with his 

cousin, Michael Walker (“Walker”), on the 1300 block 

of West Wishart Street. Malik Miles (“Miles”) yelled 

at Wesley from down the street and, in response, 

Wesley began to approach Miles. As the two men 

began to talk, Wesley told Walker to walk down the 

street away from where he and Miles were standing, 

and Walker complied. Miles and Wesley proceeded 

to get into a “heated argument” over who was 

allowed to be out on that particular block selling 

drugs. While Miles and Wesley were arguing, 

Dontey Edwards (“Edwards”) was standing near 
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Miles, but did not say anything to Wesley. In an 

attempt to end the conflict, Wesley “flagged” Miles 

and began walking away. As he looked back over his 

shoulder, Wesley saw Miles pull a black handgun 

from his pocket; Edwards had a black and chrome 

gun in his hand. Both Miles and Edwards began to 

shoot at Wesley. As Wesley began to run, he was 

shot in the leg and fell to the ground. Wesley kept 

moving on the ground, trying to seek cover, and was 

shot numerous times throughout his legs and 

abdomen. As Walker heard the shots, he saw 

Edwards begin to shoot at him and he ran away from 

the direction of the gunfire. Walker then ran toward 

Wesley when he saw him lying in the street and 

Wesley stated “Malik shot me” before losing 

consciousness.

At approximately 1:00 p.m. Officers Sneed 

and Stallbaum were traveling northbound on 

13th Street while on their way to Temple Hospital. 

The officers were hailed by a male and a female who 

told them of a commotion just south of their location 

and as Officer Stallbaum was reversing the vehicle, 

they heard six (6) to eight (8) gunshots. The 

officers drove in the direction of the gunshots and 

when they arrived at the 1300 block of West Wishart 

Street moments later they found approximately 

thirty people running and screaming. The officers 

found Wesley unconscious, lying face up on the 

ground, covered in blood, with multiple gunshot 

wounds. They placed Wesley in their vehicle and 

rushed him to the Temple Hospital emergency room. 

Walker got in his brother’s vehicle and began to 

drive to the hospital, but was stopped by 

Officers Ramos and Slobodian before he left the 

area. Officer Sneed stayed at the hospital until 

approximately 7:00 p.m., when a nurse provided 

him with a projectile that had been removed from 

Wesley’s body and gave him an update that Wesley 

was in critical but stable condition.

Officers Waters and Frysiek responded to the 

radio call for a shooting on the 1300 block of 

West Wishart Street. They received flash 
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information for a “black male, medium build, wearing 

[a] greenish-brown hoodie [and] tan pants” whose 

name was Malik. The officers surveyed the area until 

an anonymous tip drew their attention to 

3133 Camac Street. They radioed their location and 

then Officer Waters secured the front of the property 

while Officer Frysiek went to secure the rear. 

Officer Waters testified that the property appeared to 

be abandoned, as the outside was rundown, the 

front door could not be secured, the upstairs 

windows were broken, and the interior, as seen 

through a front window, was completely dilapidated. 

Officer Waters observed a male matching the flash 

description inside the property and as soon as 

backup officers arrived, less than one minute later, 

they knocked and entered through the unsecured 

door. As they entered, a couple of males were 

running up the stairs. Officer Waters observed Miles 

toss a small baggie to the floor as he was running up 

the steps and Officer Waters detained Miles just 

before he reached the second floor. The officer 

brought Miles back downstairs and recovered the 

baggie, which contained an off-white chunky 

substance, alleged[ly] crack cocaine.

From the rear of the property, Officer Frysiek 

observed a black male, later identified as Edwards, 

perched from a second floor rear window. The 

officer ordered him to stop, but Edwards jumped 

from the window. Officer Frysiek radioed a 

description of Edwards as “black male, black hoodie, 

orange shirt, blue jeans, and I believe tan boots.” 

Officer Coulter was sitting in his vehicle in a 

perimeter position, when he observed the highway 

unit chasing a male, wearing a black hoodie, orange 

shirt, blue jeans and tan boots, on foot northbound 

up 12th Street. The officer proceeded northbound on 

12th Street in his vehicle, following the male until the 

male made a right hand turn into an alleyway. 

Officer Coulter exited his vehicle, pursued the male 

up the alleyway on foot, arrested the male, and then 

Officer Frysiek identified him as the male who had 

jumped from the window.
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Dr. Amy Goldberg is the Chief of Trauma and 

Surgical Critical Care at Temple University Hospital 

and she was qualified to testify as an expert in the 

field of medical trauma and critical care. 

Dr. Goldberg was one of many trauma surgeons who 

treated Wesley, upon his arrival at the hospital on 

December 31, 2008. Upon arrival, Wesley “had no 

blood pressure and was not breathing on his own 

and his heart rate was very, very slow.” Among 

other gunshot wounds, Wesley had been shot 

through the femoral artery in his right thigh and had 

lost a significant amount of blood. Dr. Goldberg 

testified that with such trauma he could have bled 

out “within minutes” and that if he had not received 

emergency treatment as soon as he did “he could 

have died.” Wesley was also bleeding from his 

rectum as well as his anus and he had sustained 

severe injuries to his bladder, large bowel, and veins 

within his pelvis. In addition to his abdominal 

injuries, Wesley suffered significant trauma to his leg 

bones, which required orthopedic surgeries to 

correct. Dr. Goldberg estimated that Wesley had 

undergone eighteen (18) separate surgeries in the 

course if [sic] his treatment at Temple University 

Hospital.

Officer Louis Grandizio, a fifteen year veteran 

of the Philadelphia police force, was qualified to 

testify as an expert in the field of ballistics and 

firearms identification. He explained the internal 

mechanism of a firearm, as well as the various 

components of a piece of ammunition, and he 

testified that he was able to match the eleven (11) 

fired cartridge casings that Detective Etsell had 

recovered from the scene to three different firearms. 

Officer Grandizio testified that there were eight (8) 

9 millimeter Lugers fired from one firearm, two (2) 

9 millimeter Lugers fired from a second firearm, and 

one (1) .32 automatic fired from a third firearm.

Trial court opinion, 4/28/11 at 3-7 (footnotes omitted).

The PCRA court set forth the following procedural history:
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Prior to trial, Edwards and his co-defendant 

Malik Miles presented a motion for the court to grant 

a continuance, a motion to appoint a medical expert 

for the defense, and a motion for recusal, all of 

which this court denied. On February 16, 2010, 

Edwards elected to exercise his right to a jury trial 

and pled not guilty to all charges on bill of 

information CP-51-CR-0006809-2009. At the close 

of the Commonwealth’s case-in-chief, Edwards made 

a motion for judgment of acquittal based on the 

evidence, which this court denied. On February 23, 

2010, the jury found Edwards and co-defendant 

Malik Miles guilty of Attempted Murder (F1), 

Aggravated Assault (F1), Criminal Conspiracy for 

Engaging in Aggravated Assault (“Conspiracy”) (F1), 

Carrying Firearms Without a License (“VUFA 

§ 6106”) (F3), Possession of an Instrument of Crime 

(M1), and Recklessly Endangering Another Person 

(M2).[1] At the conclusion of the trial, the case was 

continued to April 30, 2010 for sentencing. On 

April 30, 2010, this court sentenced Edwards to 

8.5-20 years of incarceration in a state facility for 

Attempted Murder (F1) and 1.5-3 years of 

incarceration in a state facility for Carrying Firearms 

Without a License (F3), to run consecutively. He 

received no further penalty on the remaining 

charges.

On May 20, 2010, Edwards filed a notice of 

appeal to the Superior Court of Pennsylvania and the 

Court affirmed his convictions and judgment of 

sentence on February 29, 2012. On December 21, 

2010, while his appeal was pending, Edwards filed a 

PCRA petition. This court sent Edwards a 907 

Notice, pursuant to Pa.R.Crim.P. 907(1), on July 22, 

2011 and formally dismissed the petition on 

August 26, 2011.

On October 29, 2012, Edwards filed the instant 

PCRA petition and on October 2, 2013, Edwards filed 

 

1 18 Pa.C.S.A. § 901(a), 18 Pa.C.S.A. § 2702(a), 18 Pa.C.S.A. § 903(a)(1), 

18 Pa.C.S.A. § 6106(a)(1), 18 Pa.C.S.A. § 907(a), and 18 Pa.C.S.A. § 2705, 

respectively.
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a Partial Amendment to Post Conviction Relief 

Petition. PCRA counsel was appointed and, on 

January 1, 2015, counsel filed an Amended PCRA 

Petition. On May 19, 2015, the Commonwealth filed 

a Motion to Dismiss and the matter was first listed 

before this Court for decision on July 31, 2015. On 

August 5, 2015, following a review of the record, this 

Court sent Edwards a 907 Notice, pursuant to 

Pa.R.Crim.P. 907(1). This court did not receive any 

response to the 907 Notice. On August 28, 2015[,] 

this court dismissed the PCRA petition.

PCRA court opinion, 9/18/15 at 1-2.

Appellant raises the following issues for this court’s review:

I. Whether the judge was in error in denying the 

Appellant’s PCRA petition without an 

evidentiary hearing on the issues raised in the 

amended PCRA petition regarding trial 

counsel’s ineffectiveness[?]

II. Whether the Judge was in error in not granting 

relief on the PCRA petition alleging counsel was 

ineffective[?]

Appellant’s brief at 8.

With respect to whether the PCRA court erred when it did not grant 

relief on the PCRA petition that alleged trial and appellate counsel were 

ineffective,2the PCRA court has ably and thoroughly addressed these issues 

in its opinion of September 18, 2015. This court will affirm on the basis of

that opinion. 

With respect to whether the PCRA court erred when it denied the 

petition without conducting an evidentiary hearing, this court affirms.

 

2 We have foregone the sequence of appellant’s arguments.
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In PCRA appeals, our scope of review “is limited to the findings of the 

PCRA court and the evidence on the record of the PCRA court’s hearing, 

viewed in the light most favorable to the prevailing party.” 

Commonwealth v. Sam, 952 A.2d 565, 573 (Pa. 2008) (internal quotation 

omitted). Because most PCRA appeals involve questions of fact and law, we 

employ a mixed standard of review. Commonwealth v. Pitts, 981 A.2d 

875, 878 (Pa. 2009). We defer to the PCRA court’s factual findings and 

credibility determinations supported by the record. Commonwealth v. 

Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc). In contrast, we 

review the PCRA court’s legal conclusions de novo. Id.

[T]he right to an evidentiary hearing on 

a post-conviction petition is not absolute. 

Commonwealth v. Jordan, 772 A.2d 

1011, 1014 (Pa.Super. 2001). It is within 

the PCRA court’s discretion to decline to 

hold a hearing if the petitioner’s claim is 

patently frivolous and has no support 

either in the record or other evidence. 

Id. It is the responsibility of the 

reviewing court on appeal to examine 

each issue raised in the PCRA petition in 

light of the record certified before it in 

order to determine if the PCRA court 

erred in its determination that there 

were no genuine issues of material fact 

in controversy and in denying relief 

without conducting an evidentiary 

hearing. Commonwealth v. 

Hardcastle, 701 A.2d 541, 542-543 (Pa. 

1997).

Commonwealth v. Turetsky, 925 A.2d 876, 882 

(Pa.Super. 2007), appeal denied, 940 A.2d 365 
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(Pa. 2007) quoting Commonwealth v. Kalifah, 852 

A.2d 1238, 1239-1240 (Pa.Super. 2004).

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012).

Here, the PCRA court determined from the record before it that the 

issues raised by appellant lacked merit and that it had no need to conduct a 

hearing and did not err when it declined to conduct a hearing.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/9/2016
Without a License ("VUFA § 6106") (F3), Possession of an Instrument of Crime (M1), 

Conspiracy for Engaging in Aggravated Assault ("Conspiracy") (F1), Carrying Firearms 

Malik Mile3 guilty of Attempted Murder (F1), Aggravated Assault (F1), Criminal 

this court denied. On February 23, 2010, the jury found Edwards and co-defendant 

chief, Edwards made a motion for judgment of acquittal based on the evidence, which 

information CP-51-CR-0006809-2009. At the close of the_Commonwealth's case-inelected to exercise his right to a jury trial and pied not guilty to all charges on bill of 

and a motion for recusal, all of which this court denied. On February 16, 2010, Edwards 

the court to grant a continuance, a motion to appoint a medical expert for the defense, 

Prior to trial, Edwards and his co-defendant Malik Miles presented a motion for 

PROCEDURAL HISTORY 

Dontey Edwards' PCRA petition. 

This Opinion is written in support of this court's August 28, 2015 dismissal of 

OPINION 

DONTEY EDWARDS 

v. CP-51-CR-0006809-2009 

COMMONWEALTH OF PENNSYLVANIA 

IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY 

TRIAL DIVISION - CRIMINAL SECTION 

}: 

Circulated 08/25/2016 10:14 AM
whether the determination of the PCRA court is supported by the record evidence and is 

The standard applied when reviewing an order dismissing a PCRA petition is 

DISCUSSION 

August 28, 2015 this court dismissed the PCRA petition. 

Pa.R.Crim.P. 907(1 ). This court did not receive any response to the 907 Notice. On 

following a review of the record, this Court sent Edwards a 907 Notice, pursuant to 

was first listed before this Court for decision on July 31, 2015. On August 5, 2015, 

Petition. On May 19, 2015, the Commonwealth filed a Motion to Dismiss and the matter 

counsel was appointed and, on January 1, 2015, counsel filed an Amended PCRA 

2013, Edwards filed a Partial Amendment to Post Conviction Relief Petition. PCRA 

On October 29, 2012, Edwards filed the instant PCRA petition and on October 2, 

907(1), on July 22, 2011 and formally dismissed the petition on August 26, 2011. 

filed a PCRA petition. This court sent Edwards a 907 Notice, pursuant to Pa.R.Crim.P. 

February 29, 2012. On December 21, 2010, while his appeal was pending, Edwards 

Pennsylvania and the Court affirmed his convictions and judgment of sentence on 

On May 20, 2010, Edwards filed a notice of appeal to the Superior Court of 

remaining charges. 

Without a License (F3), to run consecutively. He received no further penalty on the 

Murder (F1) and 1.5-3 years of incarceration in a state facility for Carrying Firearms 

sentenced Edwards to 8.5-20 years of incarceration in a state facility for Attempted 

I 

I 

I I and Recklessly Endangering Another Person (M2). At the conclusion of the trial, the 

i 

case was continued to April 30, 2010 for sentencing. On April 30, 2010, this court 
1 Com. v. Hart, 911 A.2d 939, 941 (Pa. Super. 2006). 

2 Com. v. Hawkins, 894 A.2d 716, 722 (Pa. 2006). 

3 Com. v. Hart, 911 A.2d 939, 941 (Pa. Super. 2006). 

4 42 Pa.C.S. 9545(b)(1 )(i). 

5 42 Pa.C.S. 9545(b)(1)(ii). 

6 42 Pa.C.S. 9545(b)(1 )(iii). 

7 42 Pa.C.S. 9545(b)(2). 

8 714 A.2d 214 (Pa. 1999). 

9 Id. at 223. 

are evaluated pursuant to the three-prong test set forth by the Pennsylvania Supreme 

Under the Post-Conviction Relief Act, claims of ineffective assistance of counsel 

Motion to Dismiss, this Court has determined that Edwards' claims are without merit. 

review of the record, the petition, the Amended Petition, and the Commonwealth's 

with the Amended Petition, asserted claims of ineffective assistance of counsel. Upon 

In the instant matter, Edwards' PCRA petition was timely filed and, in conjunction 

not save an otherwise untimely petition for review on the merits." 

petition claiming one of these exceptions must be filed within sixty (60) days of the time 

the claim could have been presented.7 Further, the Pennsylvania Supreme Court set 

forth in Commonwealth v. Fahl that "a claim of ineffective assistance of counsel does 

diligence5, and newly recognized constitutional rights that apply retroactively". A 

interference by government officials4, facts unknown and not discoverable by due 

of the three enumerated exceptions to the one year requirement. These exceptions are 

final, unless the petition alleges and the petitioner proves that his claim(s) fall under any 

subsequent petitions, must be filed within one year of the date the judgment becomes 

Pursuant to 42 Pa.C.S. 9545(b), a PCRA petition, including second and 

but its legal determinations are subject to plenary review. 

2 The PCRA court's findings 

will not be disturbed unless there is no support for the findings in the certified record.' 

free of legal error.1 The PCRA court's factual determinations are entitled to deference, 

I 

i 

I 

1 · 
10 527 A.2d 973 (Pa. 1987). 

11 Com. v. Kimball, 724 A.2d 326 (Pa. 1999). 

12 Com. v. Pierce, 527 A.2d 973, 975 (Pa. 1987). 

13 Id.; see also Com. v. Breakiron, 729 A.2d 1088, 1101 (Pa. 1999). 

14 Com. v. Jones, 683 A.2d 1181, 1188 (Pa. 1996). 

15 Com. v. Hawkins, 894 A.2d 716, 722 (Pa. 2006) (citing Com. v. Allen, 732 A.2d 582, 587 n.15 (Pa. 

1999). 

16 Com. v. Fowler, 670 A.2d 153, 155 (Pa. Super 1996); Com. v. Polston, 616 A.2d 669, 677 (Pa. Super 

1992). 

17 Com. v. Howard, 719 A.2d 233, 237 (Pa. 1998). 

suffered prejudice on account of counsel's decisions. "Prejudice" can be described as 

In assessing the prejudice prong of Pierce, the petitioner must prove that he 

warranted unless it can be concluded that an alternative not chosen offered a potential 

for success substantially greater than the course actually pursued.17 

benefit the client.16 A finding that a chosen strategy lacked a reasonable basis is not 

omission must determine whether counsel's decisions were reasonably designed to 

broad discretion to determine the strategy employed, thus a review of counsel's act or 

adjudication of guilt or innocence could have taken place.?" Counsel inherently has 

or omission "must have so undermined the truth determining process that no reliable 

In assessing the Pierce prongs related to counsel's performance, counsel's error 

not be determined.14 

apparent that the prejudice prong has not been met, the first two prongs of the test need 

that the petitioner suffered prejudice on account of counsel's act or omission.13 If it is 

merit; second, that counsel's act or omission did not have a reasonable basis; and third, 

establishing the following three prongs: first, that the ineffectiveness claim has arguable 

presumes counsel to have been effective; thus, the petitioner bears the burden of 

raised on direct appeal." Pierce established that ineffectiveness claims are measured 

by both counsel's performance and the prejudice suffered by the petitioner.12 The law 

Court in Commonwealth v. Pierce", using the same standard as when such claims are 
18 Com. v. Kimball. 724 A.2d 326, 330 (Pa. 1999). 

19 Ccm. v. Lassen. 659 A.2d 999, 1011 (Pa. Super 1995). 

20 N.T. 2/16/2010 at 146:1-4. 

21 N.T. 2/16/2010 at 146:4-5, 152:6-9. 

On December 31, 2008, in the early afternoon, Eldridge Wesley 

("Wesley") was outside with his cousin, Michael Walker ("Walker"), on the 

1300 block of West Wishart Street. Malik Miles ("Miles") yelled at Wesley 

from down the street and, in response, Wesley began to approach Miles. 

As the two men began to talk, Wesley told Walker to walk down the street, 

away from where he and Miles were standing, and Walker complied. 

Miles and Wesley proceeded to get into a "heated argument" over who 

was allowed to be out on that particular block-selling drugs.20 While Miles 

and Wesley were arguing, Dontey Edwards ("Edwards") was standing 

near Miles, but did not say anything to Wesley. In an attempt to end the 

conflict, Wesley "flagged" Miles and began walking away. 

21 As he looked 

back over his shoulder, Wesley saw Miles pull a black handgun from his 

pocket; Edwards had a black and chrome gun in his hand. Both Miles and 

Edwards began to shoot at Wesley. As Wesley began to run, he was shot 

in the leg and fell to the ground. Wesley kept moving on the ground, trying 

direct appeal summarized the evidence presented as follows: 

the evidence would have lacked merit. This Court's April 28, 2011 Opinion in Edwards' 

deemed ineffective for failing to file a frivolous motion and any challenge to the weight of 

evidence presented at trial more than supported the jury's verdict. Counsel cannot be 

motion challenging the weight of the evidence is meritless, as the weight of the 

Edwards' assertion that counsel was ineffective for failing to present a post-trial 

i. Claim of counsel's ineffectiveness for failing to file a motion that the verdict was 

against the weight of the evidence 

A. Ineffectiveness claims against trial counsel 

must establish that counsel's actions prejudiced him to such an extent that a reliable 

determination of guilt was not made at trial." 

whether, but for the arguably ineffective act or omission, there is a reasonable 

probability that the outcome would have been different.18 In other words, the petitioner 
22 N.T. 2/18/2010 at 12:6-11. 

to seek cover, and was shot numerous times throughout his legs and 

abdomen. As Walker heard the shots, he saw Edwards begin to shoot at 

him and he ran away from the direction of the gunfire. Walker then ran 

toward Wesley when he saw him lying in the street and Wesley stated 

"Malik shot me" before losing consciousness. 

At approximately 1:00 p.m., Officers Sneed and Stallbaum were 

traveling northbound on 13th Street while on their way to Temple Hospital. 

The officers were hailed by a male and a female who told them of a 

commotion just south of their location and as Officer Stallbaum was 

reversing the vehicle, they heard six (6) to eight (8) gunshots. The officers 

drove in the direction of the gunshots and when they arrived at the 1300 

block of West Wishart Street moments later they found approximately 

thirty people running and screaming. The officers found Wesley 

unconscious, lying face up on the ground, covered in blood, with multiple 

gunshot wounds. They placed Wesley in their vehicle and rushed him to 

the Temple Hospital emergency room. Walker got in his brother's vehicle 

and began to drive to the hospital, but was stopped by Officers Ramos 

and Slobodian before he left the area. Officer Sneed stayed at the 

hospital until approximately 7:00 p.m., when a nurse provided him with a 

projectile that had been removed from Wesley's body and gave him an 

update that Wesley was in critical but stable condition. 

Officers Waters and Frysiek responded to the radio call for a 

shooting on the 1300 block of West Wishart Street. They received flash 

information for a "black male, medium build, wearing [a] greenish-brown 

hoodie [and] tan pants" whose name was Malik.22 The officers surveyed 

the area until an anonymous tip drew their attention to 3133 Camac 

Street. They radioed their location and then Officer Waters secured the 

front of the property while Officer Frysiek went to secure the rear. Officer 

Waters testified that the property appeared to be abandoned, as the 

outside was rundown, the front door could not be secured, the upstairs 

windows were broken, and the interior, as seen through a front window, 

was completely dilapidated. Officer Waters observed a male matching the 

flash description inside the property and as soon as backup officers 

arrived, less than one minute later, they knocked and entered through the 

unsecured door. As they entered, a couple of. males were running up the 

stairs. Officer Waters observed Miles toss a small baggie to the floor as 

he was running up the steps and Officer Waters detained Miles just before 

he reached the second floor. The officer brought Miles back downstairs 

and recovered the baggie, which contained an off-white chunky 

substance, alleged crack cocaine. 

From the rear of the property, Officer Frysiek observed a black 

male, later identified as Edwards, perched from a second floor rear 

window. The officer ordered him to stop, but Edwards jumped from the 

window. Officer Frysie!< radioed a description of Edwards as "black male, 

I 

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23 N.T. 2/18/2010 at 93:25; 94:26. 

2~ N.T. 2/17/2010 at 19:14-16. 

25 N.T. 2/17/2010 at 20:10-17. 

Person (M2) and . any challenge by counsel would have lacked merit. As such, 

Possession of an Instrument of Crime (M1), and Recklessly Endangering Another 

Attempted Murder (F1), Aggr:wated Assault (F1), Conspiracy (F1). VUFA § 6106 (F3), 

Accordingly, the weight of the evidence more than supported Edwards' convictions for 

black hoodie, orange shirt, blue jeans, and I believe tan boots."23 Officer 

Coulter was sitting in his vehicle in a perimeter position, when he 

observed the highway unit chasing a male, wearing a black hoodie, 

orange shirt, blue jeans and tan boots, on foot northbound up 1 ih Street. 

The officer proceeded northbound on 1 ih Street in his vehicle, following 

the male until the male made a right hand turn into an alleyway. Officer 

Coulter exited his vehicle, pursued the male up the alleyway on foot, 

arrested the male, and then Officer Frysiek identified him as the male who 

had jumped from the window. 

Dr. Amy Goldberg is the Chief of Trauma and Surgical Critical Care 

at Temple University Hospital and she was qualified to testify as an expert 

in the field of medical trauma and critical care. Dr. Goldberg was one of 

many trauma surgeons who treated Wesley, upon his arrival at the 

hospital on December 31, 2008. Upon arrival, Wesley "had no blood 

pressure and was not breathing on his own and his heart rate was very, 

very slow."24 Among other gunshot wounds, Wesley had been shot 

through the femoral artery in his right thigh and had lost a significant 

amount of blood. Dr. Goldberg testified that with such trauma he could 

have bled out "within minutes" and that if he had not received emergency 

treatment as soon as he did "he could have died."25 Wesley was also 

bleeding from his rectum as well as his anus and he had sustained severe 

injuries to his bladder, large bowel, and veins within his pelvis. In addition 

to his abdominal injuries, Wesley suffered significant trauma to his leg 

bones, which required orthopedic surgeries to correct. Dr. Goldberg 

estimated that Wesley had undergone eighteen (18) separate surgeries in 

the course if his treatment at Temple University Hospital. 

Officer Louis Grandizio, a fifteen year veteran of the Philadelphia 

police force, was qualified to testify as an expert in the field of ballistics 

and firearms identification. He explained the internal mechanism of a 

firearm, as well as the various components of a piece of ammunition. and 

he testified that he was able to match the eleven (11) fired cartridge 

casings that Detective Etsell had recovered from the scene to three 

different firearms. Officer Grandizio testified that there were eight (8) 9 

millimeter Luge rs fired from one firearm, two (2) 9 millimeter Luge rs fired 

from a second firearm, and one (1) .32 automatic fired from a third firearm. 

. ! 

ll 
26 N.T. 4/30/2010 at 9-10. 

I have taken a very close look at the presentence report, the guidelines, as 

well as the circumstances of the crime itself, I sat through the trial. I am 

going to apply the deadly weapon enhancement. I am going from those 

guidelines. However, I am not, in this case with·this defendant, going to do 

the statutory max, because I believe that the guidelines are appropriate. 

The standard guidelines are appropriate for this defendant with the deadly 

weapon enhancement used as being the guidelines. 

I believe that his age, the nature of the crime, the fact that there were two 

shooters the way I heard it that there is absolutely no question that there 

were two shooters and the jury found that to be the case. But at all times 

the victim, right from the beginning ider.tified Malik, anc I do think that Mr. 

Miles is considered in a much different light that perhaps the guidelines 

might not be appropriate for Miles, but for Mr. Edwards I believe they are 

appropriate. 

26 

during the trial, as stated by this Court at the sentencing hearing: 

charges. This sentence reflected this Court's assessments of the evidence presented 

guideline sentence on both charges and imposed no further penalty on the remaining 

the guidelines were 18-30 +/- 12 months. Accordingly, this Court imposed a lower end 

enhancement were 8.5 years to the statutory limit and on the charge of VUFA § 6106 

sentence. On the charge of Attempted Murder, the guidelines with the deadly weapon 

a lower end guideline sentence and, as such, this Court would not have reconsidered its 

aggregate sentence of 10-23 years of incarceration in a state facility, which represents 

the requisite showing of actual prejudice. This Court sentenced Edwards to an 

motion for reconsideration of sentence also must fail because Edwards has not made 

Edwards' assertion that counsel was ineffective for failing to present a post-trial 

ii. Claim of counsel's ineffectiveness for failing to file a motion to reconsider 

sentence 

and must be dismissed. 

Edwards' instant claim of ineffectiveness does not satisfy the requisite prongs of Pierce 

. I 

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11 

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As such, Edwards claim lacks merit and must be dismissed. 

this "possession charge" against Miles that was withdrawn at the preliminary hearing. 

· charged with Knowing and Intentional Possession of a Controlled Substance and it was 

charges presented to the jury in the instant case with Edwards, Miles had also been 

However, the docket sheet of co-defendant Malik Miles illustrates that, in addition to the 

THE COURT: What about the possession charge? 

DISTRICT ATTORNEY: I am not worried about it, Your Honor. I'll 

withdraw it. 

THE COURT: All right then. Malik Miles and Dontey Edwards, this Court 

finds that a prima fascie case has been made out against you on all 

charges except for possession. You're held for court to be at the Criminal 

Justice CenterThe transcript from the preliminary hearing provides the following: 

Crime charge was withdrawn at the preliminary hearing, the record belies this averment. 

no support in the record. While Edwards avers that the Possession of an Instrument of 

being tried on the charge of Possession of an Instrument of Crime is meritless and finds 

Edwards' assertion that counsel was ineffective for failing to object to Edwards 

iii. Claim of counsel's ineffectiveness for failing to object to Edwards being tried 

on the charge of Possession of an Instrument of Crime 

claim in the instant petition does not warrant relief. 

counsel's failure to file a motion for reconsideration of sentence and, consequently, his 

As such, Edwards cannot show that he suffered actual prejudice on account of 
27 This Court notes that although this issue was addressed on direct appeal, further review of the record 

shows that counsel's objection at trial was not made on behalf of both defendants, as the Commonwealth 

did not need to amend Edwards' bills of information. 

wholly unsupported by the record. While Edwards was not specifically charged with 

Edwards' claim related to the notification of the theory of accomplice liability is 

have been meritorious on appeal and, as such, Edwards' claim does not warrant relief. 

resulted in the issues being waived, the issues themselves lack merit and would not 

jury. While counsel's failure to properly raise these issues in the 1925(b) statement 

issue was this Court's alleged addition of the accomplice charge in its instructions to the 

notify Edwards of its intent to pursue a theory of accomplice liability and the second 

waived on direct appeal. The first issue was the Commonwealth's alleged failure to 

In his petition, Edwards asserts that counsel caused two issues to be deemed 

i. Claim of counsel's ineffectiveness for causing two issues to be deemed waived 

by the Superior Court on direct appeal 

B. Ineffectiveness claims against appellate counsel 

claim warrants no relief. 

because it was solely related to the case of co-defendant Miles. Accordingly, Edwards' 

amendment was entirely proper; however, it is not relevant to the instant petition 

Murder that had been erroneously omitted following the preliminary hearing. This 

amendment to the bills of co-defendant Malik Miles to include the charge of Attempted 

Commonwealth's amendment of the Attempted Murder charge is also meritless and 

similarly finds no support in the record.27 Prior to trial, the district attorney sought an 

Edwards' assertion that counsel was ineffective for failing to object to the 

iv. Claim of counsel's ineffectiveness for failing to object to the 

Commonwealth amending the attempted murder charge 

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28 Com. v. Spotz, 716 A.2d 580 (Pa. 1988). 

29 Id. 

30 Compare 18 Pa.C.S. §306(c) (defining accomplice liability) and 18 Pa.C.S. § 903 (defining crime of 

conspiracy). 

3t N. T. 2/22/2010 at 81 :23-25; 82: 1-2 . 

Edwards claims that this court introduced a new charge to the jury 

while addressing the jury's question about the court's instruction on 

conspiracy. This claim has no merit. On February 22, 2010, the jury 

submitted the following question: 

Is the criminal conspiracy charge related to a certain criminal 

act, (i.e., attempted murder) or just in general? Can we see 

the charge or definition for criminal conspiracy?" 

addressed this claim in its April 28, 2011 Opinion on direct appeal, stating: 

in its instructions to the jury also finds no support in the record. This Court previously 

Edwards' claim related to this Court's alleged addition of the accomplice charge 

direct appeal. 

Accordingly, Edwards' claim, even if not waived, would not have been meritorious on 

as conspiratorial liability, the requirements for establishing guilt via accomplice liability 

coincide with the requirements of establishing guilt via conspiratorial liability. 

30 

with another in the commission of the crimes. While accomplice liability is not the same 

adequate notice that the Commonwealth might pursue a theory of liability linking him 

defendant were charged with Conspiracy in the case and thus, Edwards had more than 

crimes, the defendant cannot claim that the Commonwealth's pursuit of such a theory 

surprised and prejudiced the defendant."29 In the instant case, Edwards and his comay pursue theories of liability that link the defendant and another in commission of 

Court explained that "[a]s long as the defendant is put on notice that the Commonwealth 

being an accomplice, this Court was not precluded from giving the jury an instruction on 

;I accomplice liability. The Supreme Court of Pennsylvania has held that a defendant may 

be convicted as an accomplice even though he was only charged as a principal." The 

,1 

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:s2 N.T. 2/22/2010 at 86:1-11. 

33 Pa. SSJI (Crim) 12.901A.1 (citing Com. v. Geathers, 847 A.2d 730 (Pa.Super. 2004); Com. v. Clinger, 

833 A.2d 792, 796 (Pa.Super. 2003); Com. v. Williams, 730 A.2d 507 (Pa.Super. 1999); Com. v. Griffin, 

456 A.2d 171 (Pa.Super. 1983)). 

.I 

··· direct appeal. · 

Accordingly, Edwards' claim, even if not waived, would not have been meritorious on 

In accordance with the bill of information on which Edwards was 

arraigned, this court established for counsel that it would re-read the 

charges against Edwards as well as re-read the instruction on liability for 

the conduct of another person or persons. This court formulated the exact 

response to be given to the jury, and in the process of doing so, this court 

stated "attempted murder in the first degree" numerous times. No 

objection to this phrase was made by any party until after this court had 

given the following response to the jury: 

The defendants in this case, Malik Miles and Dontey 

Edwards, are on trial before you charged with attempted 

murder in the first degree, aggravated assault, criminal 

conspiracy to commit assault, carrying a firearm without a 

license, possession of instrument of crime with the intent to 

employ it criminally, and recklessly endangering another 

person. Now, there are two basic ways a defendant may be 

criminally responsible for the conduct committed by another 

person or persons. [ ... ]32 

Regardless of the objection, Edwards suffered no prejudice on account of 

the phrase "attempted murder in the first degree." The Advisory 

Committee Note for Pennsylvania Suggested Standard Criminal Jury 

Instruction 12.901A.1 states: 

The courts have decided that the only degree of murder that 

may be subject to an attempt charge is murder in the first 

degree. A defendant must specifically intend that death 

result for an attempted homicide to be complete. The death 

in lesser grades of murder may occur as an unintended 

result of otherwise criminal conduct; it is, thus, logically 

impossible for one to be able to attempt to commit secondor third-degree murder.33 

Therefore, this court's reference to "first degree" was not an additional 

charge against Edwards nor did it cause him prejudice at trial. 

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34 January 1, 2015 Amended Petition, page 16. 

35 978 A.2d 1015 (Pa. Super. 2009). 

35 td. at 1020 (citing Com. v. Holley, 945 A.2d 241, 250 (Pa. Super 2008)). 

37 Com. v. Judy, 978 A.2d 1015, 1020 (Pa. Super. 2009) (citing Com. v. Chmiel, 889 A.2d 501, 544 (Pa. 

2005}}. 

[o]n December 31, 2008, in the early afternoon, Eldridge Wesley 

("Wesley") was outside with his cousin, Michael Walker ("Walker''), on the 

1300 block of West Wishart Street. Malik Miles ("Miles") yelled at Wesley 

Eldridge Wesley and Michael Walker established that: 

In the instant case, the evidence presented at trial through the testimony of 

within the context of defense counsel's conduct. It is well settled that the prosecutor may 

fairly respond to points made in the defense closing."37 

The Court further stated that "comments made by a prosecutor must be examined 

[i]t is well settled that a prosecutor has considerable latitude during closing 

arguments and his arguments are fair if they are supported by the 

evidence or use inferences that can reasonably be derived from the 

evidence. Further, prosecutorial misconduct does not take place unless 

the unavoidable effect of the comments at issue was to prejudice the 

jurors by forming in their minds a fixed bias and hostility toward the 

defendant, thus impeding their ability to weigh the evidence objectively 

and render a true verdict. "36 

opined that 

this Court will address the claim based upon the alleged remarks contained in the 

Amended Petition. In Commonwealth v. Judy,35 the Pennsylvania Superior Court 

with direct references to the transcript, as the closing arguments were not transcribed, 

remarks during closing arguments that he "had a gun and shot the victim" and that "the 

shooting was over drugs. "34 While Edwards has failed to properly present this claim 

issue of this Court denying his request for a mistrial based upon the prosecutor's 

Edwards' final assertion is that his counsel was ineffective for failing to raise the 

ii. Claim of counsel's ineffectiveness for failing to challenge this Court's denial of 

the request for a mistrial on direct appeal ·I 

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38 N.T. 2/16/2010 at 146:1·4. 

39 N.T. 2/16/2010 at 146:4·5; 152:6-9. 

40 See April 28, 2011 Opinion. 

that Edwards' claims of ineffective assistance of counsel lack 

Amended Petition, and the Commonwealth's Motion to Dismiss, this Court concludes 

Based upon this Court's independent review of the record, the petition, the 

CONCLUSION 

must fail. 

meritorious claim on direct appeal; consequently, Edwards' claim of ineffectiveness 

denial of counsel's request for a mistrial was entirely proper and would not have been a 

a gun and shot the victim" and that "the shooting was over drugs." As such, this Court's 

This evidence more than supports the prosecutor's alleged remarks that Edwards "had 

from down the street and, in response, Wesley began to approach Miles. 

As the two men began to talk, Wesley told Walker to walk down the street, 

away from where he and Miles were standing, and Walker complied. 

Miles and Wesley proceeded to get into a "heated argument" over who 

was allowed to be out on that particular block selling drugs. 

38 While Miles 

and Wesley were arguing, Oontey Edwards ("Edwards") was standing 

near Miles, but did not say anything to Wesley. In an attempt to end the 

conflict, Wesley "flagged" Miles and began walking away.39 As he looked 

back over his shoulder, Wesley saw Miles pull a black handgun from his 

pocket; Edwards had a black and chrome gun in his hand. Both Miles and 

Edwards began to shoot at Wesley. As Wesley began to run, he was shot 

in the leg and fell to the ground. Wesley kept moving on the ground, trying 

to seek cover, and was shot numerous times throughout his legs and 

abdomen. As Walker heard the shots, he saw Edwards begin to shoot at 

him and he ran away from the direction of the gunfire. Walker then ran 

toward Wesley when he saw him lying in the street and Wesley stated 

"Malik shot me" before losing consciousness." 

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