J-S75029-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KEVIN WILSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2197 EDA 2017

Appeal from the PCRA Order June 22, 2017

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0012880-2010

BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY NICHOLS, J.: FILED MAY 29, 2019

Appellant Kevin Wilson appeals from the order dismissing his timely first 

Post Conviction Relief Act1 (PCRA) petition as meritless. Appellant argues that 

the PCRA court erred in dismissing his claims that trial counsel was ineffective 

for failing to file a post-sentence motion challenging the weight of the 

evidence. Appellant also asserts that trial counsel was ineffective during 

cross-examination of witnesses. We affirm. 

This Court previously adopted the following summary of the facts 

underlying Appellant’s convictions: 

At 12:30 a.m. on July 12, 2008, the Complainant (Terrance 

Savage) sat in the driver’s side seat of his motor vehicle and 

conversed with a friend through the open front passenger window. 

After a short conversation, the Complainant’s friend left. 

Approximately ten seconds later, Appellant approached the front 

driver’s side window, leaned in the open window, and held a black 

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1 42 Pa.C.S. §§ 9541-9456.
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gun against the Complainant’s abdomen. Appellant told the 

Complainant to “give everything up.” With his left hand, Appellant 

took the Complainant’s chain, watch, and one thousand dollars. 

Appellant then told the Complainant his name. The Complainant 

testified that Appellant said “his name was Scar Face Kev and if I 

wanted any trouble, ask about him.” After Appellant gave his 

name, he shot the Complainant in the stomach, and walked away.

While the robbery was occurring, Kendall McGill was 

approximately 40 feet away playing dice with other males. McGill 

saw Appellant at the Complainant’s car. Approximately a minute 

later, McGill heard a gunshot and saw Appellant quickly walk away 

from Complainant’s car as he put a black gun in his left waistband 

with his right hand. Appellant then walked past McGill and around 

the corner.

After Appellant walked around the corner, the Complainant started 

driving to Temple University Hospital. While driving, the 

Complainant called his mother and told her that he had been shot. 

When the Complainant arrived at the emergency room, doctors 

performed surgery. 

After approximately four days, the Complainant left the hospital 

without permission because he feared for his safety. After leaving 

the hospital, the Complainant went home. However, the 

Complainant still did not tell the police that Appellant had shot him 

because he feared for his life and did not want to be labeled a rat. 

However, while the Complainant was home recovering, he 

informed his mother and friends that Appellant had shot him. 

Three months later, the Complainant finally told the police who 

had shot him.

In March 2010, detectives attempted to arrest Appellant but they 

could not locate him. On April 9, 2010, the Commonwealth 

learned that Appellant was in custody at State Correctional 

Institution (SCI) Greene. In April 2010, Officer Timothy Simpson 

of the East Division Warrant Unit faxed a writ to SCI Greene to 

bring Appellant to court. However, Appellant was not brought 

down. Although the Commonwealth faxed additional requests on 

May 4, 2010, May 21, 2010, and June 2, 2010, Appellant was still 

not brought down. Finally, the Commonwealth paid 

approximately $2,000.00 to extradite Appellant to Philadelphia. 

On June 8, 2010, Appellant was extradited and arrested.
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Commonwealth v. Wilson, 59 EDA 2013, at 1-2 (Pa. Super. filed Sept. 22, 

2014) (unpublished mem.) (quoting Trial Ct. Op., 9/25/13, at 2-4) (brackets 

omitted). 

Appellant was charged with attempted murder, aggravated assault, 

robbery, possession of firearms prohibited, and related offenses,

2 and 

proceeded to a jury trial. At trial, the Commonwealth, in relevant part, called 

Complainant3 and McGill, whose testimony was summarized above as part of 

our decision in Appellant’s direct appeal. 

We add that during the direct examinations of Complainant and McGill,

the Commonwealth elicited testimony that Complainant and McGill first gave 

formal statements implicating Appellant after being charged with federal 

crimes and as part of plea negotiations with federal authorities. The 

Commonwealth also introduced McGill’s first statement to federal authorities. 

According to McGill’s first statement, he did not see Appellant with a gun, but 

saw Appellant place an object into his waistband that “had to be a gun.” N.T., 

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2 18 Pa.C.S. §§ 901(a), 2502; 18 Pa.C.S. §§ 2702(a), 3701(a)(ii), 6105(a)(1), 

and 907(a), respectively.

3 Furthermore, while Complainant was testifying, the trial court excused the 

jury for a sidebar conference, but Complainant remained on the stand and 

Appellant remained in court. During the conference, Appellant allegedly 

looked at Complainant, mouthed the words “I’m going to kill you,” and made 

a gesture as if he was slashing his neck three times. N.T., 8/23/12, at 109. 

The Commonwealth subsequently called a deputy sheriff who was standing 

behind Appellant at that time to testify at trial regarding the gesture made by 

Appellant. The trial court also issued a consciousness of guilt charge. 
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8/24/12, at 74. McGill, however, gave a subsequent statement to federal 

authorities indicating that Appellant had a black gun. Id. at 76-77.

During cross-examination of Complainant and McGill, Appellant’s trial 

counsel noted that Complainant and McGill did not implicate Appellant

immediately after the shooting. Trial counsel’s examination emphasized that

the federal charges were brought against Complainant and McGill after the 

shooting. Trial counsel further highlighted that Complainant and McGill were 

testifying against Appellant under cooperation agreements with federal 

authorities before being sentenced for their federal charges. In so doing, trial 

counsel confronted Complainant and McGill with their possible sentencing 

exposures for the federal offenses and indicated that they could receive 

downward departures from the sentencing guidelines based on their 

cooperation. Trial counsel also noted that Complainant and McGill were 

cellmates while in federal custody. 

Trial counsel did not cross-examine McGill about the discrepancy 

between his first and subsequent statements regarding the object Appellant 

placed in his waistband after the shooting. However, trial counsel did confront 

McGill with another discrepancy between his first and subsequent statements, 

noting that McGill initially stated that he heard a “bang” that sounded like 

gunshots, but later indicated that he heard gunshots. Id. at 115-16. 

After Appellant’s cross-examination of Complainant, the Commonwealth 

called Complainant’s mother to the stand. Complainant’s mother testified that 
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a couple of weeks after the shooting, she overheard Complainant on the phone 

stating that the shooter identified himself as “Scar Face Kev.”

4

At the conclusion of trial, the jury found Appellant guilty of all charges.5 

The trial court sentenced Appellant to an aggregate term of twenty to forty 

years’ imprisonment and a consecutive fifteen years’ probation. Trial counsel 

did not file post-sentence motions on Appellant’s behalf, but took a direct 

appeal to this Court.

On September 22, 2014, this Court affirmed the judgment of sentence. 

See Wilson, 59 EDA 2013, at 1. Appellant did not file a petition for allowance 

of appeal in the Pennsylvania Supreme Court. 

Appellant timely filed a pro se PCRA petition that was postmarked on 

January 21, 2015. The PCRA court appointed present counsel,6 who filed an 

amended petition and memorandum of law on August 3, 2016. Appellant 

claimed trial counsel was ineffective for failing to (1) preserve a weight of the 

evidence challenge in the trial court and (2) cross-examine Complainant and 

McGill with evidence that would have impeached their testimony and 

demonstrated their bias. 

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4 As discussed in Appellant’s direct appeal, Complainant’s mother’s testimony 

was admitted as a prior consistent statement, and the trial court issued a 

cautionary instruction directing the jury not to consider the statement for the 

truth of the matter asserted. Wilson, 59 EDA 2013, at 13-21.

5 The jury specifically found that the attempt at murder resulted in serious 

bodily injury to Complainant. 

6 The Honorable Glynnis Hill presided over the trial, sentencing, and the 

instant PCRA proceedings. 
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Alternatively, Appellant claimed that trial counsel was ineffective for 

emphasizing that Complainant testified against him to obtain reduced federal 

prison sentences. According to Appellant, such testimony opened the door for 

the Commonwealth to admit testimony about Complainant’s prior consistent 

statement identifying Appellant as the shooter. 

Appellant also asserted that trial counsel should have obtained 

Complainant’s phone records to show Complainant was “selling drugs and 

committing other crimes while in prison.” Mem. of Law, 8/3/16, at 13. 

Appellant suggested that the Commonwealth’s failure to disclose 

Complainant’s phone records constituted a violation of Brady v. Maryland,

373 U.S. 83 (1963). 

On December 13, 2016, the Commonwealth filed a motion to dismiss 

Appellant’s PCRA petition asserting that Appellant’s claims failed to state a 

basis for relief. On May 5, 2017, the PCRA court issued a Pa.R.A.P. 907 notice 

of its intent to dismiss Appellant’s petition. Appellant did not respond, and 

the court dismissed Appellant’s petition on June 22, 2017. 

Appellant filed a timely notice of appeal and complied with the PCRA 

court’s order to file and serve a Pa.R.A.P. 1925(b) statement. The court filed 

a responsive opinion concluding that Appellant failed to demonstrate prejudice 

from trial counsel’s failure to seek a new trial based on the weight of the 

evidence. The court further determined that the record did not support

Appellant’s claims that trial counsel was ineffective during cross-examination 

of the Commonwealth’s witnesses and that Appellant failed to establish his 
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alternative claims challenging the adequacy of trial counsel’s cross 

examination. 

Appellant now presents the following issues for review:

[1.] Whether the [PCRA c]ourt erred 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.

[2.] Whether the [PCRA c]ourt erred in not granting relief on the 

PCRA petition alleging Counsel was ineffective.

Appellant’s Brief at 8. 

Appellant presents three arguments in his brief: (1) the PCRA court 

erred in finding that there was no basis for a new trial based on the weight of 

the evidence, see id. at 18-20; (2) the PCRA court erred in finding that trial 

counsel conducted adequate cross-examination of the Commonwealth’s 

witnesses, see id. at 20-22; and (3) the PCRA court erred in declining to hold 

an evidentiary hearing, see id. at 15-16.7 Before addressing these arguments

in detail, we set forth the general principles governing our review. 

This Court’s review from the dismissal of a PCRA petition “is limited to 

examining whether the PCRA court’s determination is supported by the 

evidence of record and whether it is free of legal error.” Commonwealth v. 

Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted).

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7 We address Appellant’s arguments in a different order than presented in his 

brief. 
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To establish a claim of ineffective assistance of counsel, a PCRA 

petitioner “must show, by a preponderance of the evidence, ineffective 

assistance of counsel which, in the circumstances of the particular case, so 

undermined the truth-determining process that no reliable adjudication of 

guilt or innocence could have taken place.” Commonwealth v. Turetsky, 

925 A.2d 876, 880 (Pa. Super. 2007) (citation omitted). The burden is on the 

petitioner to prove all three of the following prongs: “(1) the underlying claim 

is of arguable merit; (2) that counsel had no reasonable strategic basis for his 

or her action or inaction; and (3) but for the errors and omissions of counsel,

there is a reasonable probability that the outcome of the proceedings would 

have been different.” Id. (citation omitted). “A failure to satisfy any prong 

of the ineffectiveness test requires rejection of the claim of ineffectiveness.” 

Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009) (citation 

omitted). 

The Pennsylvania Supreme Court has stated that “boilerplate allegations 

and bald assertions of no reasonable basis and/or ensuing prejudice cannot 

satisfy a petitioner’s burden to prove that counsel was ineffective.” 

Commonwealth v. Paddy, 15 A.3d 431, 443 (Pa. 2011). Moreover, a 

petitioner cannot rely on mere conjecture and speculation to establish a claim 

of ineffectiveness. See Commonwealth v. Spotz, 896 A.2d 1191, 1216 (Pa. 

2006)

A PCRA petitioner is not automatically entitled to an evidentiary hearing. 

See Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa. Super. 2015). 
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“[T]he PCRA court can decline to hold a hearing if there is no genuine issue 

concerning any material fact and the petitioner is not entitled to postconviction collateral relief, and no purpose would be served by any further 

proceedings.” Id. (citation and quotation marks omitted) On appeal, we 

“examine each of the issues raised in the PCRA petition in light of the record 

in order to determine whether the PCRA court erred in concluding that there 

were no genuine issues of material fact and in denying relief without an 

evidentiary hearing.” Id. (citation omitted).

Appellant first argues that the PCRA court erred in dismissing his claim 

that trial counsel should have sought a new trial based on the weight of the 

evidence. Appellant’s Brief at 18. He notes: 

The Commonwealth’s case depended heavily upon the testimony 

of [Complainant] and Kendall McGill. There was no physical 

evidence that tied Appellant to the offense. [Complainant] made 

a deal with the government so that he could get a lighter sentence. 

He had numerous arrests. And he was subsequently not a credible 

witness. Likewise, . . . McGill’s testimony regarding the existence 

of a handgun was inconsistent at trial as well. This witness’s first 

statement declared that he did not see the Appellant with a gun 

but saw him put an object that “had to be a gun” to his waist. 

Then, inconsistent with this, the second statement declared that 

he saw a portion of the gun.

Due to the lack of credibility of the Commonwealth witnesses who 

were all trying to make deals to save themselves, a fact that prior 

counsel failed to explore adequately on cross-examination, the 

evidence preponderates sufficiently heavily against Appellant’s 

conviction and suggests that a serious miscarriage of justice may 

have occurred. There is little evidence in the present case 

supporting the verdict reached by the jury.

Id. at 19. 
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It is well settled that a challenge to the weight of the evidence must be 

preserved in the trial court. See Pa.R.Crim.P. 607. In the context of an 

ineffective assistance of counsel claim, the failure to file a post-sentence 

motion does not give rise to a presumption of prejudice. See 

Commonwealth v. Reaves, 923 A.2d 1119, 1131-32 (Pa. 2007). Therefore, 

a petitioner must establish that there is a reasonable probability that a motion 

would have led to a different outcome. See Reaves, 923 A.2d at 1131.

The Pennsylvania Supreme Court has described a motion for a new trial 

based on a challenge to the weight of the evidence as follows:

A motion for a new trial based on a claim that the verdict is against 

the weight of the evidence is addressed to the discretion of the 

trial court. A new trial should not be granted because of a mere 

conflict in the testimony or because the judge on the same facts 

would have arrived at a different conclusion. Rather, “the role of 

the trial judge is to determine that ‘notwithstanding all the facts, 

certain facts are so clearly of greater weight that to ignore them 

or to give them equal weight with all the facts is to deny justice.’” 

It has often been stated that “a new trial should be awarded when 

the jury’s verdict is so contrary to the evidence as to shock one's 

sense of justice and the award of a new trial is imperative so that 

right may be given another opportunity to prevail.” 

An appellate court’s standard of review when presented with a 

weight of the evidence claim is distinct from the standard of review 

applied by the trial court:

Appellate review of a weight claim is a review of the 

exercise of discretion, not of the underlying question 

of whether the verdict is against the weight of the 

evidence. Because the trial judge has had the opportunity 

to hear and see the evidence presented, an appellate court 

will give the gravest consideration to the findings and 

reasons advanced by the trial judge when reviewing a trial 

court’s determination that the verdict is against the weight 

of the evidence. One of the least assailable reasons for 
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granting or denying a new trial is the lower court’s 

conviction that the verdict was or was not against the weight 

of the evidence and that a new trial should be granted in the 

interest of justice.

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (citations 

omitted) emphasis in original).

Instantly, the PCRA court determined that there was no reasonable 

probability that Appellant would have been entitled to a new trial if trial 

counsel challenged the weight of the evidence. As noted by the judge, who 

presided at both the trial and the instant PCRA proceeding, the verdict did not 

shock the conscience. PCRA Ct. Op., 1/16/18, at 3. Both Complainant and 

McGill positively identified Appellant as the shooter. Furthermore, Appellant 

presented ample testimony attempting to impeach the credibility of 

Complainant and McGill.

Based on the foregoing, we conclude that the PCRA court properly 

concluded that Appellant failed to establish prejudice. The impeachment 

evidence against Complainant and McGill was not of such greater weight that 

to ignore it or to give it equal weight constituted a denial of justice. See Clay, 

64 A.3d at 1054-55. Therefore, even if trial counsel had properly preserved 

a challenge to the weight of the evidence in the direct appeal, we discern no 

basis to conclude that Appellant would have been entitled to a new trial. See 

Reaves, 923 A.2d at 1131-32. Accordingly, Appellant’s first argument fails. 

See Ousley, 21 A.3d at 1242.
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Appellant next argues that the PCRA court erred in concluding that trial 

counsel’s cross-examination of Complainant and McGill was inadequate. 

Appellant presents several contentions in support of this argument.

First, Appellant contends that trial counsel “did not thoroughly cross 

examine [McGill or Complainant] to show they were cooperating to get a 

reduced sentence on an unrelated charge” or failed to reveal their biases. 

However, as noted by the PCRA court, the record contradicts this contention. 

Instantly, trial counsel repeatedly emphasized that Complainant and

McGill first gave formal statements implicating Appellant after being charged 

with federal offenses. See N.T., 8/23/12, at 122, 136; N.T., 8/24/12, at 114. 

Trial counsel highlighted the possible sentences that McGill and Complainant 

faced on those charges, and the possibility that they could, and hope to,

receive a recommendation for a downward deviation for their cooperation. 

See N.T., 8/23/12, at 70 (indicating that Complainant was facing a maximum

sentence of life), 76 (indicating that the federal authorities could file a motion 

for a downward departure based on Complainant’s cooperation); N.T., 

8/24/12, at 97, 109, 119. Further, as noted by the PCRA court, trial counsel 

attempted to show that Complainant and McGill had been promised favorable 

treatment if they testified against Appellant, but they denied any promises of 

leniency. See PCRA Ct. Op. at 6 (citing N.T., 8/23/12, at 133; N.T., 8/24/12 

at 98). 

Therefore, Appellant’s contention that trial counsel failed to raise 

Complainant’s and McGill’s unrelated federal charges during cross-
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examination lacks arguable merit. Accordingly, we discern no error in the 

PCRA court’s ruling. See Daniels, 963 A.2d at 419; Ousley, 21 A.3d at 1242. 

Second, Appellant asserts that trial counsel was ineffective for failing to 

cross-examine McGill using his prior statements to federal authorities. 

Appellant’s Brief at 20. Appellant emphasizes that McGill initially stated that 

after the shooting, McGill saw Appellant place an object that had to be a gun 

in his waistband. Id. Later, McGill told federal authorities that he saw 

Appellant put a black gun into waistband. Id. Appellant concedes that this 

discrepancy was raised by the Commonwealth during its direct examination of 

McGill, but claims that trial counsel should have highlighted the discrepancy 

during cross-examination. Id. 

Our review confirms that the Commonwealth raised this discrepancy 

during direct examination. See N.T., 8/24/12, at 74-77. Trial counsel did not 

question McGill about the fact that he initially told federal authorities that he 

saw Appellant put an object in his waistband, and later described the object 

as a black gun. See id. at 115-16. However, trial counsel cross-examined 

McGill regarding a difference between his first and second statements to 

federal authorities, noting that McGill initially told federal authorities that at 

the time of the shooting, he heard a “bang.” See id. Trial counsel elicited 

McGill’s testimony that the two statements were different. See id.

Therefore, the jury was aware that McGill provided greater details in his 

second statement to police. Although trial counsel did not specifically impeach 

McGill regarding McGill’s statements about the object Appellant placed in his 
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waistband, trial counsel emphasized the differences between McGill’s first and 

second statements. Under the circumstances of this case, we discern no basis 

to conclude that Appellant established prejudice as a result of trial counsel’s 

failure to cross-examine McGill about his prior statements concerning the gun. 

Accordingly, no relief is due. See Ousley, 21 A.3d at 1242.

Third, Appellant contends that trial counsel was ineffective for crossexamining Complainant about the federal plea agreement. Appellant’s Brief 

at 21-22. According to Appellant, this permitted the Commonwealth to 

present Complainant’s mother to testify that Complainant made a prior 

consistent statement identifying Appellant as a shooter. Id. Additionally, 

Appellant suggests that trial counsel should have objected to Complainant’s 

mother’s testimony, because Complainant stated that he never told his mother 

who the shooter was. Id. at 21-22. 

At the outset, we note that this contention directly contradicts 

Appellant’s previous claim that trial counsel failed to demonstrate 

Complainant’s bias based on the federal charges. In any event, Appellant, as 

petitioner, was required to plead that trial counsel lacked a reasonable basis 

for his decision, and failed to do so. See Turetsky, 925 A.2d at 880 

More specifically, Appellant bears the burden of showing a substantially 

greater possibility of success at trial if trial counsel did not cross-examine 

Complainant about the federal charges to avoid the possible admission of a 

prior consistent statement. Instantly, Appellant failed to plead or develop any 

argument on appeal that trial counsel’s decision to impeach Complainant using 
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the federal charges was unreasonable under the circumstances of this case. 

Accordingly, we conclude that no relief is due based on Appellant’s boilerplate 

contention. See Paddy, 15 A.3d at 443. 

Fourth, Appellant contends that trial counsel was ineffective for failing 

to object to Complainant’s mother’s testimony regarding Complainant’s prior 

consistent statement. Appellant’s Brief at 21-22. Appellant asserts that trial 

counsel should have objected because Complainant testified that he did not 

tell his mother who shot him. Id. 

We note that this contention was undeveloped in Appellant’s amended 

PCRA petition and on appeal. See Paddy, 15 A.3d at 443. On appeal, 

Appellant does not refer to any point in the record indicating that Complainant 

stated he did not tell his mother who shot him. See Pa.R.A.P. 2119(c). 

Moreover, Appellant fails to cite any case law to show that his proposed 

objection concerned the admissibility, rather than the weight of the prior 

consistent statement.8 Therefore, Appellant has waived consideration of this 

claim. See Commonwealth v. Johnson, 985 A.2d 915, 925 (Pa. 2009).

Fifth, Appellant contends that trial counsel should have cross-examined 

Complainant using phone records to demonstrate that Complainant was “still 

selling drugs and committing other crimes while in prison.” Appellant’s Brief 

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8 We add that Complainant’s mother testified that she overheard Complainant 

indicating that the shooter identified himself as “Scar Face Kev” during a 

phone conversation with an unidentified third party. N.T., 8/24/12, at 20. 

Sometime after overhearing this conversation, Complainant’s mother stated 

that Complainant told her about the shooter, when she “questioned him 

[about] who Scar Face Kev was.” Id. at 20. 
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at 21. Alternatively, Appellant asserts that the Commonwealth violated Brady

by failing to disclose Complainant’s phone records. Id.

Instantly, the PCRA court rejected this contention, noting that Appellant 

failed to establish how such evidence would have been relevant. PCRA Ct. Op. 

at 8. The court also concluded that such evidence would have been 

inadmissible character evidence. Id. 

Our review reveals that Appellant offered no corroboration for his 

assertion that Complainant’s phone records would contain evidence that 

Complainant was engaged in drug trafficking while in prison. Spotz, 896 A.2d 

at 1216 (noting that mere conjecture and speculation that favorable evidence 

existed did not meet a PCRA petitioner’s burden of proof). Accordingly, 

Appellant’s contention that the PCRA court erred in dismissing his contention 

based on Complainant’s phone records fails. See id. 

In his final argument, Appellant asserts that the PCRA court erred in 

dismissing his petition without a hearing. However, in light of our review of 

Appellant’s substantive claims, we agree with the PCRA court that Appellant’s 

petition did not raise genuine issues of fact as to his claims. Therefore, the 

PCRA court did not abuse its discretion in declining to hold a hearing. Smith, 

121 A.3d at 1052.

Order affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/29/19