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 or der 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 t he 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 s elling drugs. While Miles and Wesley were arguing, Dontey Edwards (“Edwards”) was standing nearJ. S38012/16

- 2 - 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 shoul der, 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 l ying 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 13 th 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 blo ck 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 approximatel y 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 flashJ. S38012/16

- 3 - 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 Cam ac 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 doo r 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 arrive d, 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 W aters 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 ob served 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, b lue 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 12 th Street. The officer proceeded northbound on 12 th 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.J. S38012/16

- 4 - 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 ca re. 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 su ffered 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 Lou is 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 p iece 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 Luger s 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:J. S38012/16

- 5 - 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 E dwards 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 PC RA 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 fil ed
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.J. S38012/16

- 6 - 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 raise d 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, 2 the 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.J. S38012/16

- 7 -

In PCRA appeals, our scope of review “is limited to the findings of the PCRA court and the evidence o n 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 discreti on 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. H ardcastle , 701 A.2d 541, 542 - 543 (Pa. 1997). Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa.Super. 2007), appeal denied, 940 A.2d 365J. S38012/16

- 8 - (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: 9/9/2016W i tho u t a License ( " V UFA 

### § 6 1 06 " ) ( F 3), Po ss e ss i on of an I n strum e n t of C r i me ( M1 ),

C on s p i ra cy fo r E n gag i ng i n Ag g ravated Ass a u lt (" Con s pi ra cy ") ( F1 ), C ar ryin g Fi rearm s M al ik M i le 3 guilty of Attempted Murder ( F 1) , Aggravat ed Ass ault (F 1 ) , Cr imi na l this court denied
. On February 2 3 , 2 01 0 , the j ury fou nd Edwa rd s and co - def en da n t ch i ef , E dwards made a motion fo r judgment of acquittal based on the evi den c e , whi c h i nformation C P-51-CR - 0006809 - 2009
. At the close of the

_Commonwealth ' s case - i nelected to exercise his r i ght to a j u ry t r ia l and pied not guilty to all charg es on bill of and a m otion for rec u sal , all of whi c h th i s co urt den i ed
. On February 16 , 2010 , E dwards the court to grant a continuance , a mot i on to ap p oint a med i ca l expert for the de f ense , Prior t o trial , Edwards and his co -d efendant Mal ik Miles p re se n ted a mot i o n fo r PROCEDURAL HISTOR Y Dontey Edward s ' PCRA petition
. This Opini o n is written in support of th i s court ' s Au g ust 28 , 20 1 5 d i smissal of OPINION DONTE Y EDWARDS CP -51 - CR - 0006809 -2 009



### v . COMMONWEALTH OF P E NNSYLVAN I A IN T HE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY

T RIAL DIVISIO N - CRIMINAL SE CT I ON 

### }: Circulated 08/25/2016 10:14 AMwhether th e d eterm i nat i on of the P CRA co u rt i s s u ppo rt e d by the record evi d e n ce and is

T he st a n da rd app l i ed when rev i ewing an order dismissi n g a P CRA p e ti tio n is DI SC U S SION A u g u st 2 8 , 20 1 5 t h is co u rt d ism i ssed t he P CRA pe t it io n . P a . R. C r im
. P
. 907(1 )
. T his co u rt did not receive any response to the 907 N oti ce . On fo ll owi n g a rev i ew of the record , th i s Co u rt sent E dwards a 907 N ot i ce , pursuant t o was fi rst listed before this Co u rt for d ecision on J uly 31 , 2015
. O n A u g u st 5 , 20 1 5 , P etition
. On M ay 19, 2015 , the Com m onwealth filed a M ot i o n to Di sm i ss a n d t h e matter co un se l was appo int ed and , on J an u ary 1 , 2015 , counsel filed an Ame n ded PCRA 2013 , Edwa rds fi l ed a P a rtia l Amen d me nt to Post Convicti o n R e l ief P etition
. PCRA On October 29 , 2012 , E dwards filed the instant P CRA petition a n d on Octo b er 2 , 907( 1 ) , on Ju ly 22 , 2011 and formally di sm i sse d t h e pet iti o n o n A u g u st 26 , 2011. fil e d a PC RA pe titi o n . T h i s co urt sen t E dwards a 907 N oti ce , p u rsua nt to P a . R. C rim
. P
. F e b r u a ry 29, 2012. On D ecem b e r 21 , 2010 , wh il e h i s appeal was pendi n g , E dwards P ennsylvan i a a n d t he Court affirmed h i s convictions and j udg m e nt of se nt ence on On M ay 2 0, 2010 , E dwards fi led a not i ce of appea l t o t he Superior Co u rt of rema i ning c h arges . Wi th o u t a Lice n se (F3) , to run consec u tive ly. H e rece i ved n o further pena l ty on the M u rd er ( F 1 ) and 1
. 5 - 3 years of i ncarceration i n a state faci lity for Carry i ng Firearms se nt enced Edwards to 8
. 5 - 20 years of i nca rcerat io n i n a st at e fac i lity for Atte m pt ed I 

## I I 

# I and R eckl essly En d a ngering Anot h er Person ( M2 )
. At the co nclusion of t he trial , the 

## i case wa s con tinu e d to A p r i l 30 , 2010 for se n tencing. On Apr il 30 , 2010 , t hi s co u rt1 Com
. v . H art, 911 A.2d 939, 9 4 1 ( Pa
. Supe r . 20 06)
. 2 Com
. v . Hawkins, 894 A.2d 716 , 72 2 (Pa
. 2 0 0 6 )
. 3 Com. v

. Ha rt, 9 1 1 A. 2 d 93 9 , 9 41 ( Pa. Supe r . 20 06)
. 4 4 2 Pa
. C
. S
. 95 4 5( b )( 1 )(i)
. 5 4 2 Pa
. C
. S
. 9545( b )(1)(ii)
. 6 42 Pa
. C. S
. 95 4 5( b )(1 )( i ii)
. 7 42 Pa
. C
. S
. 95 4 5( b )( 2 ). 8 71 4 A.2d 21 4 (P a . 1999)
. 9 Id
. at 223
. are eva l uated pursuant to the three - prong test set fort h by the P en n sylvani a Supreme Under the P o st - Convi ction Re li ef A ct , cla i ms of ineffecti ve a s s i stan c e of counse l M ot i o n to Di s mi ss, this Cou rt h a s determi n ed that Edwa rds ' cla i ms are witho u t meri t. review o f the record , the pet i t i on , the Amended P et i tio n , an d the Commonwea l t h ' s with the Amended Pet i tion , asserted claims of in e ffect ive ass i stan c e o f co unsel. Upon In t he ins t a n t m atte r, Edwards ' P C R A petit i on wa s t i me ly fi led a nd , in conjunction n ot save an otherw i se u nt i me ly pet i t i on for rev i ew o n t h e mer i ts . " p etit i on cla im i ng o n e of these ex cept i o n s must b e fil e d w i th i n si xty (60) days of the t im e the cla i m cou l d have b een presente d
. 7 F u rther, the P en n sylvan i a Suprem e Cou rt set forth i n Commonwealthv. Fahl that " a claim of ineffective assistance of counse l does d ili gence 5 , and new l y recogni z ed co n stitutio n a l rights that app l y retroactive l y ". A in te rf e re n ce by government offic i als 4 , facts u n known and not d i scoverab l e by due of the three e num erate d excep ti ons to the one year req ui reme n t. T hese except i ons are fina l , u n l ess the petition a ll eges and the petitioner proves that his c l aim ( s ) fa ll under any su b seq u ent petitio n s , must be fi led w i th i n one year o f the date the judgment beco m es Pursua n t to 4 2 Pa
. C
. S
. 95 45 ( b ), a PCRA peti ti on , i nclud i ng seco n d an d b ut its l ega l d etermi n atio n s are su bj ect t o plenary review
. 2 T h e PCRA co u rt's fin d ings will not b e d istur b ed unless there i s no support for the findings in the certified re cord .' free of l ega l error. 1 T he P C RA court ' s f act u a l determ i nati o n s are e n t i tled to de f e re n ce ,

I i 

# I 1 ·1 0 52 7 A. 2d 9 73 (Pa
. 1 987 )
. 11 Com. v. K

i mball , 72 4 A. 2d 3 2 6 ( P a . 1999 )
. 1 2 Com. v

. Pierce, 5 2 7 A. 2 d 9 73 , 9 75 ( P a. 198 7 )
. 1 3 Id
. ; s ee als o Com. v

. Breakir

on, 729 A.2d 1088 , 11 01 ( P a . 199 9 )
. 14 Com
. v

. Jones, 683 A.2d 1 181 , 1 1 88 (Pa
. 1 9 9 6 )
. 15 Com. v

. Ha wk i ns , 8 9 4 A.2d 71 6 , 72 2 ( P a . 2006 ) (ci t i ng Com. v . A ll en, 7 3 2 A.2d 58 2 , 58 7 n . 1 5 ( Pa
. 19 99 )
. 1 6 Com. v

. Fo wl e r , 670 A
. 2d 153 , 1 5 5 (Pa
. S upe r 1 99 6 ) ; Com
. v . Pols t on, 616 A
. 2 d 6 6 9, 6 77 ( Pa
. Sup er 1992 )
. 17 Com
. v

. H o w ard , 719 A. 2 d 2 3 3, 237 (P a . 1998 ). suff e red prej ud ice on accou n t of cou n sel's decisions
. " P rejudi c e " can b e descr i bed as I n assessing the prej ud i ce pro n g of Pi e rce, the petitioner must p rove that h e warra n ted un l ess it ca n b e co n clud e d that a n a l ternative not cho s e n offered a p otent i al for s u ccess s ub sta n t i a lly greater than t h e course actually pursued
. 17 benefit the client. 1 6 A find i ng that a chosen strategy la c ked a reasona b l e basis i s not om i ss i o n m u st d eter mi n e w h et h er cou n s e l's decisions were reasonab l y desig n ed to b road d i scret i o n t o d eterm i ne t he strategy e mp l oye d , thus a revi ew of co u nse l' s act or adj u d i cat i o n of g u i lt or i n n oce n ce co u l d have ta ken 

### plac e . ? " Counsel inherently has or o m iss i o n " mu st h ave so un dermi n ed the truth determi n ing p ro cess that no reliable I n assess in g t h e Pier

ce p rongs re l ate d t o counse l ' s performance , cou n sel's error n ot b e determi n e d
. 1 4 appare n t that t h e p rej ud i ce pro n g h as n ot b ee n met , the first two prongs of the te st need th at t h e peti t i o n e r su ff e re d p rej u d i ce o n acco un t of co un se l ' s act or om i ssion
. 13 If it i s mer i t; seco n d , t h at co un se l ' s act or omiss i o n d i d n ot have a reas o na b l e b as i s ; and third , esta b l i s h ing t he fo ll ow i n g t hree prongs : first , that the i neff e ctive n ess cl aim has a rgua bl e p res um es co un se l t o h ave b ee n effect ive; t h us, the pe ti tioner b ears the b u rde n of rais e d on direct 

### appeal ." Pierce e st a bl ished that ineffe ctivene s s claims are measured by b oth counsel's pe rforma n ce a n d the prejud i ce suffere d by the petit i o n e r. 1 2 T he law Cou rt i n Commonw

ealt h v . Pierce", us in g the same standard as when su c h claims are1 8 Com
. v. K imba ll
. 72 4 A.2 d 3 26 , 33 0 (Pa
. 1 999)
. 1 9 Cc m. v. Lassen. 659 A.2d 99 9 , 10 11 (Pa
. Sup er 199 5 ). 20 N
. T
. 2/ 16/2 01 0 at 146 : 1 - 4
. 2 1 N .T. 2/ 16/2 0 10 at 1 46 : 4 -5 , 152 : 6 - 9
.

O n Decem b e r 3 1, 2 008 , i n th e ear ly aft ernoo n , E l d r idg e Wes l ey (" Wes l ey") was o uts i d e w ith hi s co u sin , Mi c ha e l Wa l ke r (" Wa l ke r" ) , o n t h e 1 30 0 b l oc k of W est W i sha rt S t reet. Mali k M i l es ( " Mi l es " ) yelle d at Wes l ey f rom down the street an d , in response , Wes l ey b e ga n t o a p proach Mil es . As t he two men b e g an t o t al k, W e sl e y to ld W al ke r t o walk d ow n the street, away from whe re he and Mil es were sta nd i ng , and Wa lker co m p l i e d
. Mil es a nd W e sl ey p rocee d e d to g et in to a " h eat ed a rgu me nt " ove r wh o was a ll owe d to b e out o n that p a rti cu l ar b l oc k-se ll in g d r ug s . 20 Whi l e Mi l es a nd Wes l ey w e re a rguing , Do n te y E dward s ( "E dwa rds " ) was sta nding n ear M i l es , b u t did n ot say an yt h i ng to W es l ey . I n a n att e m pt to en d t h e co nfli ct , W es l e y "f l a gg e d " M i l es a nd b e gan wa lking away . 2 1 As h e l oo ke d bac k over h is s houlder, Wes l ey s aw Mil es pu ll a bl ac k h a n dg u n from his p oc ke t ; Edwa rd s had a b l ac k a nd chro m e gun in hi s han d
. Bot h Mil es an d E d wards b egan to s h oot at Wes l ey . As Wes l ey b e g a n t o ru n , h e w as s h ot i n th e l eg a nd f e ll to the g ro und
. W es l ey ke pt m oving o n th e grou nd , try i n g d irect a pp ea l s um m a ri ze d the evi de n ce prese n te d a s fo ll ows : t h e evi d e n ce wo ul d h ave l acked me r it. Th is Co urt ' s A p ri l 28, 2 011 Op i n i on i n Edwards ' dee m ed i neffect i ve for fa ilin g to fil e a frivo l ous m oti o n and a n y cha ll e ng e t o t he we ig ht of ev id e n ce p re se n te d at t r i a l mo re t h an s up po rt ed the j u ry 's verdi ct. C ou nse l cannot b e moti o n cha ll en gi n g th e we i g ht of th e evi den ce i s m er itl ess, as th e wei gh t of t h e Ed w ards' assertion t h at counse l was i ne ff ective f or fai li ng t o p resent a p ost - tr ial 

### i. C l ai m of co un se l 's i n effect ive n ess for f a i l ing to fil e a m otion that th e verdi ct w as against t h e w ei g h t of th e ev i den ce A. Ineff e ctiven e ss cla i ms against

tr ial couns

e l mu st establi sh th at co un se l 's a cti o n s prejudi ce d him t o s u c h a n exte nt th at a r eliable d e t e rmi n ati o n of guilt wa s n ot m a d e at trial ." w he t her, but fo r th e arg u a b ly in effective a ct or o mi ss i o n, t h ere i s a reaso n a bl e pro b a bi l ity that th e o ut co m e wo uld h ave b ee n di ffere n t. 18 I n oth er word s, th e p e ti t i oner22 N
. T
. 2/ 18/2010 at 12 : 6- 11.

to seek cove r , a nd was s h ot n umero u s t imes th rou gh out h is l e g s and abdomen
. As Wa lker heard the shots , he saw Edwa rds begi n t o shoot at him and he ra n away from the d i rection of the gunfire
. Wa lker then ran toward Wes l ey when he saw hi m ly i n g i n the street and Wes l ey st ate d " Malik shot me " before losi n g consc i ousness . At a p proximately 

### 1 : 00 p.m. , Officers Sneed and Sta ll baum were t rave l i n g no rth bo un d o n 

### 13th Street wh i le on their way to T em p l e H os pi ta l. T he officers were hailed by a male and a f ema l e who to l d them of a commotio n just south of their l ocation and as Officer Stallbaum was reversi ng the vehic l e , t h ey heard s ix (6) to ei gh t (8) g un shots. T he off i cers drove in the d irection of the gu n shots and when they a r rived at th e 

### 1300 bl ock of West Wishart Street moments l ater t h ey found ap proximate l y t hi rty p eo pl e ru nning a n d screami ng . T he office rs fou n d Wes l ey unconscious , lying face u p on the ground , covered i n b l ood , with m ul t ipl e gunshot woun d s. T hey p l aced Wesley i n their vehicle a n d rushed him to the T emp l e H os p i ta l e m e rge n cy room . Wa l ker got in h i s brot h er's veh i cle a n d bega n to drive to the hospital, but was stopped by Officers Ramos and S l obod i a n before he left the area. Officer Sneed stayed at the hospital unti l a pp roxi mate ly 

### 7 : 00 p . m . , w h e n a nurse prov i de d h i m wit h a projecti l e that had been removed f rom Wes l ey ' s b ody and gave h i m an u p dat e that Wesley was i n cr i tica l but stable condition
. Officers Waters and F rysiek res p o n ded to th e radio ca ll fo r a shooting on the 

### 1300 b l ock of West Wishart Street. T hey rece ived fl ash i n f ormatio n for a " blac k m a l e, medium bu il d, wea ri ng [a] g reenish-brown hoodie [and ] tan pants" whose n ame was Ma lik
. 22 Th e offi ce rs s urveye d the area until an anonymous ti p drew their attent i on to 

### 3133 Camac Stree t. Th ey ra di oed t h e ir l ocat i on a n d then Officer Waters secured th e front of the p rope rty wh il e Officer F rysiek went to secure the rear. Officer Waters testi fi ed that the pro p erty appeared to be a b andoned, as the o uts i de was rundown, t he front door cou l d n ot be secured, the u p sta irs wi n dows were broken, and the i n te r ior, as seen th ro u gh a fro nt w i ndow , was com pl etely dila p idated
. Officer Waters observed a ma l e matchi ng the fl ash desc ri ptio n i nside t h e property and as soon as bac kup officers arr i ved, l ess t h an one min u te l ate r, t h ey k n ocked an d entered thro u g h the unsecured door
. As they entered , a couple of
. males were runni n g up the sta i rs . O ff icer Waters o b served Mil es toss a small bag gi e to the fl oo r as he was ru n n i ng u p the ste p s and Officer Wat e rs de t a in ed M i l es j u st befo re he reached the second floor
. T he officer brought Miles back downst a irs a n d recove re d the ba ggi e, which co n tai n ed a n off - wh i t e chunky su b sta n ce, alleged crack coca i ne . From the rear of the p roperty, Officer Frysiek observed a b l ack m a le, l at er ide n t i fied as Edwa rds, p e rched from a second f l oor rear window
. T he offic e r ordered him to sto p , b u t Edwa rds ju mp e d f rom t he window
. Officer F rys i e!< rad i oed a descri p tion of Edwards as " b l ack male , I 

## ·I . I2 3 N .T. 2/1 8/2010 at 9 3 : 25 ; 9 4 : 26
. 2 ~ N.T . 2/ 1 7/20 1 0 at 19 : 14
- 16 . 2 5 N . T . 2/ 17/2010 at 20 : 10 -17 . Pe rso n ( M 2) a n d
. a n y c h allenge by co u nsel wou l d have l acked m erit. As suc h , Posse s s i o n of an Instr u ment of C ri me ( M1 ), and Recklessly Enda n gering Another Attempted Murder ( F1 ), Aggr : wated Assau lt ( F1 ) , Con s piracy ( F1 )
. V U FA 

### § 6106 ( F 3) , Accordin g ly, t h e weig h t of t h e evidence m ore than s upp o rt ed Edwards ' convict i ons fo r b l ack h ood i e , ora n ge s h irt , blu e jeans, and I be l ieve tan boots ." 2 3 Officer C o ul ter was s i tt i ng in hi s ve h icl e i n a per i meter p osition , w h e n h e o b se rved t h e hi g h way u nit c h asi ng a m a le, we a ri ng a bl ac k h oodie , orange s h irt , b lu e jeans and tan boots , on foot nort hb ound up 1 

### i h Street. T h e off i cer p ro ceeded nort hb ound o n 1 

### i h S treet in h is ve hi cle , fo ll owi n g t h e ma l e un t il t h e m a l e made a ri gh t h and turn i nto an a ll eyway. Officer C o ul ter exited his ve hi cle , pursue d the male up t h e a ll eyway o n foot , arrested t h e m a l e , and t h en Officer F rysiek i dent i fied h i m as t h e male w h o h ad jumped fro m t h e w i ndow
. D r. A my Goldberg is t h e C hi e f of T ra u ma and S u rgica l C r i tica l Ca re at Te mpl e U n ivers i ty H os pi tal a n d s h e was q u a lifi ed to test i fy as an ex p e rt i n th e fie l d of medica l trauma and critica l care . D r. Goldberg was on e of many trauma surgeons w h o t reated Wes l ey , u p on h is a rr i va l at t h e h osp i ta l o n D ecem b er 31 , 2008
. U pon arrival , Wes l ey " h ad no b l ood press u re and was not b reat h ing on his own and h is h eart rate was ve ry , ve ry s l ow . " 24 Amo n g ot h e r gu n s h ot wounds , Wes l ey had b een s h ot throug h t h e femora l arte ry i n hi s ri g ht t h igh a n d had lost a sig n ificant amount of b l ood
. Dr
. Go l d b erg testified t h at w it h s u c h t ra u ma h e cou l d h ave bl ed out " wi t hi n mi n u tes " and t h at if h e had not received emergency treatment as soo n as h e d i d " he cou l d h ave died
. " 25 W e s l ey was a l so b l eedi n g from hi s rectum as we ll as hi s a nu s an d h e h ad sustained severe inj u ries t o hi s bl adder, l a rge bowel , a nd veins with i n his pe l vi s . In addit i on to h i s a b domi n a l injuries , W e s l ey suffered signifi cant trauma to his l eg bones , w h ic h re qui red ort h o p edic s urg e ri es to co r rect. Dr
. Go l d b erg est i mated that Wes l ey h ad underg o ne eig h teen ( 18 ) separate surg e r i es in t h e cours e if his treatment at Temp l e Un ivers i ty H ospi t al. Officer L ouis Gra n d i zio , a fiftee n ye a r vetera n of t h e P h i l ade lph ia p o l ic e force , was quali fi ed to testi fy as an exp e rt in the fi e l d of b allistics and firearms ident ifi cat i on . H e ex p lained t h e interna l mec h a n ism of a firearm, as we ll as t h e var i ous com p o n e n ts of a p i ece of ammu n ition
. and h e testified that he was ab l e to matc h t h e eleve n (11 ) fi red cart r idge cas in gs t hat Detect ive Etse ll ha d recovered from the sce n e to three di ff ere n t fi rearms . Off i ce r Grand i z i o testified that t h e re w e re eight (8 ) 9 mi ll imeter Lu ge rs fired from one firearm , two ( 2) 9 mill i meter Lu ge rs fi red from a second fi rearm , a n d one (1 )
. 32 automatic fi re d f rom a t hi rd fi rea r m . 

## . ! 

# ll26 N .T
. 4/30/2 010 at 9- 10
. I have take n a ve ry c l ose l oo k at the p rese n te n ce re p ort, the gui d e li nes, as we ll as t h e ci rcu mst a n ces of the cr im e i tse l f, I s at thro ug h th e tr i a l. I am g o i ng t o a p p ly th e dead l y wea p on e nh a n ceme n t. I am go ing fro m those gu i d e li n es. H ow ever, I am n o t , in t his ca s e w i t h · th is d e f e ndant , g o i ng to do t he stat u t o ry m ax , beca u se I b elieve th at the gui d e l i n es are a p pro p riate
. T he sta n da rd gu i delin e s a re a p p ro p ri at e f o r t h is de f e nd a n t wi t h the d e a dly wea p o n e n h a nce m en t use d as bein g the g ui d e li nes . I b e li eve that h i s ag e , th e n ature of the c r i m e, the f act that t h e re we re two shoo t ers th e w ay I h eard i t that there i s abso l utely n o q ues t i o n th at t here w e re two s hoot ers and t he j ury fo u nd t hat to b e the case. B u t at a ll t i mes the victim , ri ght from the beg i n ni ng i d e r. t i fi e d M a li k, an c I do t hi n k th at M r . Mi l es i s cons i d e re d i n a mu c h di ffe ren t li ght that p erha p s the g uidel i nes might n ot be a p p ro p ri at e fo r M il es , bu t fo r M r. Ed wa rd s I be l ieve t hey a re appro p ri ate . 2 6 d u ri ng th e t ri al, a s stat e d by t h i s Co urt at t he se n te n ci ng he a rin g : cha r ges. T h i s se nt e n ce re fl ected t hi s Co urt 's a ssess m e n ts of t h e ev i de n ce p rese n ted gu i d e l in e se nt e n ce on both c harg e s a n d im p os ed no furth er penalt y on t he remaini

ng t he g u i d e l i n es w e re 

### 18
- 3 0 +/- 

### 12 mo nt hs. Acc ording ly , thi s C o urt i m p osed a l owe r en d e n ha n ce m e nt w e re 8
. 5 y e a rs t o t h e statu tory l i m i t a nd o n th e cha rg e o f VU FA 

### § 6106 se n tence . On th e charg e of Atte m p t ed Mu rder, t h e gu ide li n es wit h the dead l y we ap o n a l ow er en d gu i d e li n e s en te n ce a n d , a s suc h, this Cou rt wo u l d n ot h ave reco n si d ered i t s agg re gat e se nt e n ce of 

### 1 0-23 yea rs of in carce ratio n in a state f acility , w hic h re p resents t he re qui s i te s h o w i ng of actual prej ud ice
. T h is Co urt se n tenced E d wa rds to an m ot i o n fo r reco n s i d e ration of se nt e n ce a l so mu st f a il b ecau se Ed wa rd s has n ot made E dward s' as se rti o n t h at co un se l wa s i n effect ive for f ailing to pres ent a p ost - trial i i. C la i m o f co uns e l 's i n e ff ect ive ne ss f or fa i li n g to fil e a m ot i o n t o reco n s id er s e ntenc e a nd must b e di s mis sed
. Edwa rd s' i nsta nt c la im o f in e ffe ct ive n ess does n ot s atisfy th e re q uisite p ro ng s o f Pie r ce 

## . I I 

### ., 1 1



## I 

# I IAs s u c h , E d ward s c l ai m l acks merit a nd mu st be d i smissed.

this " p ossess i o n c h arg e " ag a in st Miles that was with d raw n at the p relimi n a ry h eari ng . · charge d with K n ow i ng an d I n te n t i onal P ossession of a Contro ll e d Substance an d it was ch a rges p resented to the ju ry in t h e instant case with E d ward s , M i l es ha d a l so b een However, the docket s h eet of co-de f endant M a l ik M i l es i ll ustrates that , in a ddi tio n to th e THE COURT : W h at a b o u t t h e possess i on charge? DISTRICT ATTORNEY: I am not worr i e d a b out it , Your H onor. I ' ll w ithd raw it. TH E COURT : A ll ri ght then
. M a l ik M i l es an d D ontey E dward s , this Co u rt fi n ds t h at a pri ma fa scie case has b een m a d e o u t a g a i n st you on a ll c h arg es exce pt for possessio n . You're he ld f or court t o b e at th e Crim i nal J ustice Ce n ter The t ra n scr ip t from the p re li mi n a ry hearin g p rovi d es t h e followi n g : Crime charg e was w i thdrawn at the p relimi n ary h earin g , the record b e l ies this averment. no support i n the reco rd
. Whi l e Edwards avers that the P ossess i on of an In strument of b e in g tried on the c h arge of P ossessio n of an I ns t r um e n t of Cr im e is m eritless a nd find s E d wa rd s' assert i o n t h at cou n se l was ineffecti ve fo r fa ili n g to o bject to E d ward s iii. C l aim of co u nsel's ineffectiveness for f ailin g to o bj ect to E d ward s b ei ng trie d o n th e c h arg e of P ossess i o n of a n I nstru m e n t of Crime c l aim i n the in sta n t p et iti o n d oes n ot warra n t re l ie f
. co un se l ' s fai l ure to fil e a m otio n f or reco n s i deratio n of se n te n ce a n d , co n se q ue ntl y, hi s As s u c h , Ed wards ca n not s h ow t hat h e suffere d actu al p rejudi ce o n account of27 Th i s Co u rt n ote s t h at although t his i ssue wa s add re s s ed on d i rect appea l , furthe r revi e w of th e record

s hows that co un se l ' s obj e ct i on at tri a l was not m ade on be ha l f of both defen d an t s , as th e C ommonw e a lth d id n ot n ee d to amend E dward s' b ill s of i nfo rm at i on . w h o l ly unsu pp orte d by the record
. W hi l e Edwa rds was not s p eci fi ca ll y c harged wit h E dwa rds' c l a im re l ate d to t h e not i fi cat i on of th e th e ory of acco mp l i ce liability i s h ave be e n me r itori o u s on ap p ea l an d , a s s u c h , E dward s' cl ai m does n ot wa rra n t relief
. res ul ted i n th e issues b e ing wa ive d , t he i ss u es t h e m se l ves l ac k m e rit an d wo ul d not j u ry. W hil e co u nse l 's fail ure t o p roper ly ra i se th ese iss u es in the 1 925( b ) st at e m e nt iss u e was t h is Co urt 's a ll e g ed a d di t i on of t h e acco mpli ce c ha rg e i n its in str u cti o n s to the n otify E d ward s of its in ten t t o pursue a t h eo ry of accomp l i ce l iab il ity a n d th e second waived o n d irect a pp ea l. T h e first i ssue was th e Com m on w ea lt h ' s a ll e g ed f ai l ure to I n his p e ti t i o n , Edwa rd s a sse rts t h at co uns e l ca u s ed two i ssu es to b e dee m e d 

### i. C l a im of co uns e l 's in e ff ect iveness for ca u s ing two i ss u es t o b e dee m ed wa ive d by t h e Su p erior Co u rt on d i rect appea l B. Ineff e ct iveness cla

i ms agai nst a ppellate counsel cla i m wa rra n ts n o re l i e f
. b ecau se i t wa s so l e ly re l at e d to th e case of co- def e nd a n t M il es . Ac cording ly, E d ward s' amendme n t was en tire l y prop er ; h ow ever, i t i s n ot re l evant to t h e i nsta n t pet i t i on Mu rder t h at h ad b ee n erro n eo u s ly o m itted fo ll owing the p rel imin a ry he ari ng . T his a m e n d m e nt t o t h e bill s o f co- def en d a nt M a lik Mi les to in cl u de th e c h a rg e of Att e mpt ed Co mm o nw e alth 's amendm e nt of th e Att emp te d Mu rder cha rg e is al s o me ri t l e ss and si m il arl y fin ds no s upp o rt in t he reco rd
. 2 7 P r i or to t ri a l , t he dist r ict att orney sou gh t a n Ed ward s' asse rt i on that co u nsel was i neffective for failing t o o bject t o t h e iv. C l a im of co un s el ' s in e ffe ct iven e ss fo r fa il i ng t o o bj ect t o the Co mm o nwe a l t h am e nd i ng t h e attemp te d murd er c harge 

## · ' .! 

### . I2 8 Com
. v . Spotz, 716 A.2d 580 ( P a . 1 988 ). 2 9 Id
. 30 Compar

e 18 P a . C
. S
. §306 (c) (defi n i n g accomplice l iabi l ity) and 18 P a . C
. S
. § 9 03 ( d e fin i n g crim e of con s pira cy)
. 3 t N
. T
. 2/22/2010 at 81 : 23-25 ; 82 : 1- 2
.

E dwards claims that this co urt introduced a new charge to the jury while address i ng th e jury's qu e stion ab o ut the court ' s i nstruction on conspiracy. T his claim has no merit. On February 22, 2010, the jury submitted the follow i ng questi o n : Is the c ri m inal con s pira cy charg e related to a certain criminal act , (i.e. , attempted murder) or just in g e nera l ? Can we see th e cha rge or de fi ni t ion for c ri m i nal consp i ra cy? " addres s ed this cla i m i n i ts Apri l 28 , 2011 O p inion o n direct appeal , stat i ng : i n its i nstru ct i ons t o the j ury als o fi nds no su p p ort i n the record. T his Cou rt p revi ous ly Edwards ' claim related to this Court ' s alleged a d di t ion of the accom p lice charge direct appeal. Accord i ngly , E dwards ' claim , even if not waived , wo u ld not have b ee n mer i t orious on as conspiratorial liabil i ty , the requiremen ts for esta b l i shing gu i lt via accomplice lia b i lity coincide with the requ i rements of establish i ng g uil t vi a cons pi rat or i a l li a b ili ty . 30 with anot h er in the commission of the crimes. While accom p lice l i ab ili ty i s not the same adequate not i ce that the Commonwealth might pursue a theory of liabi l ity linki ng him defendant wer

e charged with C o nspiracy i n the case and thus , Edwards had more than crimes , the defendant cannot cl a i m that the Commonwe a l th ' s p ursuit of such a theory surp r ised and p rejudiced the de f endant." 2 9 In the i nst an t case , E dwards and his co may pursu e theories of liability that link the defenda n t and another in commiss i on of Co urt explained that "[a]s long as the defenda n t is put on notice that t he Commonwealth being an accomplice, this Court was not precluded from g i ving the jury an instruct i on on 

## ;I accomp l ice l iab ili ty . The Supreme Court of Pennsylvania has held that a defendant may be convict e d as an accomplice even though he was only charged as a p ri ncipal ." T he 

# . I

, 1

. ! . ....:s 2 N
.T
. 2/22/2010 at 86 : 1 - 11
. 3 3 P a. SS JI (Cri m ) 1 2
. 901A. 1 (ci tin g Com. v . G eathe rs, 8 4 7 A
. 2d 73 0 (Pa
. S uper. 20 04 ); Com
. v . Clinger , 83 3 A.2d 792 , 796 ( Pa
. Supe r. 2 003) ; Com. v . W illiams, 730 A. 2d 507 (P a . S up e r. 1 99 9) ; Com
. v . Griffi n, 4 5 6 A.2 d 1 7 1 ( P a . Su p e r. 1983)). 

### .I · ·· d i rect a pp e al. · Accordingl y , Edwa rd s ' claim , eve n if n ot waive d , wo uld not h ave been m e rit or i o us on I n accord a nce with the bi ll of i nformat i on on wh i ch E dw ards was a r ra i gned , t h is court estab li s h ed for co u nse l that it wou l d re-read t h e charg es a g a i nst E d wa rds as w e ll as re - re ad th e i nst r u cti o n o n li a bility fo r the conduct of anot he r perso n or p e rsons . T h i s co urt fo r mu l ated the exact res p onse to be gi ven to the jury , a n d i n the p rocess of d o in g so, th i s co u rt stated " attem pte d m u rd er in the fi rst d e g ree" n u me ro u s t im es . N o objecti on t o this p hrase was made by a n y p a rty u n til aft er th i s co urt had g i ve n th e foll ow ing res p onse to the jury : T he d e fendants in t h i s case , M a l ik M il es and Dont ey E dwa rds , a re o n tria l b efore yo u c h arg e d with atte mp t e d murder i n the fi rst degre e , ag gravated a ssa u l t , c rimi na l con s p i racy to com m it a ssau l t , ca rrying a fi rearm w i t h out a li ce n se , p ossess i on of in st r um en t of c rim e wi th th e i nt ent t o e mploy it crim i na ll y, an d rec kl e ss ly end ang e r i n g a n other person . N ow , t h ere are two ba s i c ways a de f end a n t m ay b e cri m i na ll y res p on sibl e for th e con du ct co mmitt ed by an ot h er p e rson or p e rs ons . [
... ] 32 Re gard l es s of the o bj ecti o n , Edwa rds s u ffe red no prejudic e o n a cco unt of t he p hrase " attem pt e d mu rd e r in the first d e gree . " T he Adv i sory Co mmi ttee N ote for P ennsy lvani a Su g g e st ed S ta n d ard C riminal Ju ry I nst r u cti o n 1 2
. 901A.1 stat es : T he co urts h ave decide d t hat the o nl y d e g re e of mu rde r t hat m ay b e s ubj ect to an att e mp t ch arge i s murd e r in the fi rst de g re e. A defendant must sp ec ifi call y i nte nd t h at death res u l t f o r an att e mp ted h omi cid e to b e co mpl e t e . Th e d eath i n l esser grades of murd e r may o cc u r as an uni nten d ed res ul t of ot h e rwis e cri m i nal co n duct ; it i s , t hu s , logicall y i m p o s s ibl e fo r o n e to be a ble t o a ttempt to co mmit se cond o r t h i rd - de g ree mu rd e r . 3 3 T he refore , th i s court ' s re f ere n ce to " fi rst d e gree " wa s n ot a n add i t i ona l cha rg e ag ai nst E d wa rds nor d id i t cau se h i m p rej udi ce at tri a l. 

# . I


# , ,I

) j 

# ! I 1 34 Janu ary 1 , 20 1 5 Ame nde d P et i t i on , page 16
. 35 978 A.2d 1015 ( Pa
. Super
. 2009 )
. 35 td
. at 10 2 0 ( c i t i ng Com. v . Holley , 945 A
. 2d 241 , 250 ( P a . Super 20 0 8) )
. 37 Com
. v

. Judy , 978 A.2 d 1 015, 1 020 ( Pa
. S uper. 2009) (citing Com
. v . Chmi e l , 889 A.2 d 50 1 , 5 44 ( Pa
. 200 5 }}. [ o ]n D e cember 3 1 , 20 08 , in the early aftern o on , Eldridge Wesl ey (" Wesley " ) was outside w i th his cou s in , Michael Walker ( " Walker' '), on the 1 30 0 b l oc k of West Wishart Street. Mali k Mi l es ( "Mi l e s ") yelled at Wesl e y E ldridge We s ley and Michae l Wa l ker established that: In the instant case , th e eviden c e presented at tri al through the tes ti mony of with i n the context of defens e counsel's conduct. I t i s well sett l ed th at the p rosecutor may fa i rly respond to points made in the de f ense clos i ng ." 37 T h e Court furth e r stated that " comments made by a prosecutor must be exam i ned [i ] t is we ll settled that a prosecutor has co n s i derab l e latitude du r ing cl os i ng arg u ments and his arguments are fair i f they a re s u pported by the ev i dence or use infere n ces that can reasonably be derived from the ev i dence
. Further, p rosecutoria l m i sconduct does not t a ke p lace u nless the unavoidab l e effect of the co mments at i ssue was to prejudice the jurors by forming in the i r mi n ds a fi xed bias and hostility towa rd the de f endant , thus im p edin g the i r ability to weigh the evi den c e object ively and render a tru e verdict. " 36 op i ned that th i s Court w i ll address the c l a i m based upon the alleged remar ks co ntain e d in the Amended Petition
. I n Comm onwea lth v. Judy , 35 the Pennsy l vania Super io r C ourt w i th d i rect re f erences t o the transcri pt , as the closing arguments were n ot tra n scribed , remar ks duri ng cl o sing arguments that he " had a gun and shot the victim " and that " the sh o oting was over drugs
. " 34 While Ed w ards has failed to pro pe r ly present this claim issue of this Court denying his req u est f o r a m i str i al base d up o n the prosecutor's Edwards ' fina l a s sertion is that his co unse l was ineffective for failing to ra i se the ii. C l aim of counsel's ineffectiveness for failing to challe ng e this Court ' s denia l of the request for a mistrial on dire ct appeal ·I 

# I 

# I , , . II 

# I .I 38 N
. T
. 2/1 6/2 0 1 0 at 146 : 1· 4
. 39 N
.T
. 2/1 6/2 010 at 146 : 4 ·5 ; 1 5 2 : 6 - 9
. 40 S ee Apr il 2 8 , 2011 O p i n i on . t h at Edward s' cl ai ms of in effect ive assist a nce of co u nse l l ack Amende d Pe ti t ion , a n d t he Co m monwe a lth ' s M ot i on to Di smiss , th i s Court concludes Base d up on t hi s Co urt ' s inde p endent rev i ew of the record , the petit i o n , the CONCLUSION must f ai l. m er i torio u s claim on di rect a p p eal ; conseq u ent l y , E dwards ' cla im of ineffect i veness denial of co uns e l 's requ e st for a mi st rial wa s e nti rely p ro p e r and would n ot have b ee n a a gu n a nd s hot t he vict i m " and t hat " the s hoot i n g was over dr u gs . " As s u ch , th i s Co u rt's T h i s evi de n ce mo re t han s upports the p rosec u tor's a ll e g e d rema r ks that Edwards " h a d from d own t h e street and , in res p onse , Wes l ey b e ga n t o a pp roach Mil es . As the two men b e gan to ta l k, We sl ey to l d Wa l ker t o wa l k do w n th e st reet , away from where he an d Mil e s were sta ndi ng , a nd Wa lker com pl i ed
. Mil es a nd We sl ey pro cee d ed to g et i nto a " heated argument " over who was a ll owe d to b e o ut o n that pa rtic ul ar bl oc k se lli n g drugs
. 38 Wh il e Mil es and W es l ey were arguing , O o nt e y Edward s ( "E d wa rd s" ) wa s stand i n g near M i l es , bu t d i d not say anyth i ng to Wesley
. I n an atte mp t to end the con fl i ct , Wes l ey " fl a gg ed " M i l es an d be g an wa l kin g away . 3 9 As he l ooked ba c k over h is shou l d e r, W es l ey saw Mil e s p u ll a bla ck hand gu n fro m h is p oc ke t; Edwards ha d a b l a c k and chrome gun i n his hand
. B ot h Mil e s a nd E dw ard s be gan to sho ot at Wes l ey. As W e s l ey b e ga n to run , he was shot i n the leg a nd fell t o the grou n d
. Wes l ey ke p t mov ing o n the g ro u nd , trying t o se ek cove r, and was s h ot num ero u s t i m es th ro ug hout hi s l e g s an d a bd o m en . As Wa l ker he a rd the s hots , he s aw Edwa rds b e g i n to shoot at h im a nd he ra n away from t h e di rectio n of t he g u nfi re . Wa lker then ran t oward W es l e y wh e n he saw h im l yi n g i n the street an d Wes l ey st at e d " M a li k shot me " b efore l osing 

### cons ciou snes s ." 

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