J-S73027-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

JEFFREY ANDERSON,

Appellant No. 688 WDA 2018

Appeal from the PCRA Order Entered April 10, 2018

In the Court of Common Pleas of Erie County

Criminal Division at No(s): CP-25-CR-0003325-2015

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.

MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 30, 2019

Appellant, Jeffrey Anderson, appeals from the post-conviction court’s 

April 10, 2018 order denying his timely-filed petition under the Post Conviction 

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

The PCRA court summarized the facts of Appellant’s case, as follows:

This case involves a robbery that occurred at the Avalon 

Hotel in downtown Erie, Pennsylvania[,] at approximately 3:42 

a.m. on October 2, 2015. Dawn Keister was working the front 

desk at the Avalon when she was approached by a white male in 

the main lobby. The suspect brandished a knife and told Keister 

to give him the money. Keister filled the bag with approximately 

$70.00 in cash and the suspect fled. Although the robber was 

wearing a blue hoodie and a scarf over the lower half of his face, 

Keister recognized him as someone who had previously worked at 

the Avalon whose name was “Jeff.” The [robbery] was captured 

on the hotel surveillance video. Later, Keister positively identified 

[Appellant] “without hesitation” in a photo line-up as the robber. 

PCRA Court Opinion (PCO), 4/10/18, at 1.
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Based on this evidence, a jury convicted Appellant of robbery, theft by 

unlawful taking, receiving stolen property, simple assault, and possessing an 

instrument of crime. He was sentenced on July 21, 2016, to an aggregate 

term of 40 to 120 months’ incarceration, followed by 5 years’ probation. 

Appellant filed a timely appeal, and this Court affirmed. Commonwealth v. 

Anderson, 174 A.3d 120 (Pa. Super. 2017) (unpublished memorandum).

On September 22, 2017, Appellant filed a pro se PCRA petition. Counsel 

was appointed and originally filed a Turner/Finley1‘no-merit’ letter. 

However, the court ordered counsel “to supplement his no[-]merit letter to 

address the issue of trial counsel’s failure to call alibi witness Patricia M. 

Anderson ([Appellant’s] mother) at trial.” PCO at 3. Counsel thereafter filed 

an amended petition arguing the merits of this single ineffectiveness claim. 

Attached thereto, counsel included a statement by Ms. Anderson setting forth 

her alibi defense for Appellant, which will be discussed in more detail, infra. 

The court conducted a PCRA hearing on April 6, 2018. On April 10, 

2018, the court issued an order and accompanying opinion denying 

Appellant’s petition. Appellant filed a timely notice of appeal, and he also 

timely complied with the PCRA court’s order to file a Pa.R.A.P. 1925(b) concise 

statement of errors complained of on appeal. In lieu of a separate Rule 

1925(a) opinion, the court relied on its April 10, 2018 opinion in support of its 

____________________________________________

1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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order denying Appellant’s petition. Herein, Appellant raises the following two 

issues for our review:

A. Whether the [PCRA] court erred in failing to declare a mistrial?

B. Whether [Appellant] was afforded ineffective assistance of 

counsel in that defense counsel failed to formally move for a 

mistrial based upon the conduct of [the] Commonwealth ... and 

defense counsel failed to present an alibi witness, namely, 

Patricia Anderson, who was present at trial and who had been 

the predicate for counsel[’s] issuing a Notice of Intention to 

Present Alibi?

Appellant’s Brief at 2.2

Our standard of review regarding an order denying post-conviction relief 

under the PCRA is whether the determination of the court is supported by the 

evidence of record and is free of legal error. Commonwealth v. Ragan, 923 

A.2d 1169, 1170 (Pa. 2007). This Court grants great deference to the findings 

of the PCRA court, and we will not disturb those findings merely because the 

record could support a contrary holding. Commonwealth v. Touw, 781 A.2d 

1250, 1252 (Pa. Super. 2001). 

In Appellant’s first issue, he contends that the trial court erred by “failing 

to grant a mistrial as of its own accord” when “the Commonwealth presented 

evidence of a video on social media in which [] [A]ppellant was identified as 

the perpetrator, which constituted blatant and express hearsay evidence....” 

Appellant’s Brief at 4. According to Appellant, while the court “admonish[ed] 

____________________________________________

2 We note that Appellant fails to adhere to Pa.R.A.P. 2119’s mandate that his 

Argument “be divided into as many parts as there are questions to be 

argued....” Nevertheless, because we can discern the claims he raises, we will 

overlook this briefing error.
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the Commonwealth and ... threaten[ed] the issuance of a mistrial[,]” it erred 

by only issuing a cautionary instruction to the jury. Id. 

We initially chastise Appellant for not citing to where in the record this

alleged trial court error occurred. Notwithstanding, however, his claim fails 

on its face, as it is not cognizable under the PCRA. See 42 Pa.C.S. § 

9543(a)(2) (setting forth the claims that are cognizable under the PCRA). 

Moreover, we would also deem this claim waived because Appellant could have 

raised it on direct appeal but failed to do so. See 42 Pa.C.S. § 9543(a)(3) 

(stating that to be eligible for PCRA relief, the [Appellant] must demonstrate 

that the claim was not previously litigated or waived); 42 Pa.C.S. § 9544(b) 

(directing that “an issue is waived if the [Appellant] could have raised it but 

failed to do so before trial, at trial, during unitary review, on appeal or in a 

prior state post[-]conviction proceeding”).

In Appellant’s second issue, he alleges that his trial counsel, Brian 

Arrowsmith, Esq., acted ineffectively in two ways: (1) by failing to request a 

mistrial based on the Commonwealth’s admission of the social media video 

that ostensibly contained hearsay; and (2) by not calling to the stand his alibi 

witness, Patricia Anderson. In regard to ineffectiveness claims, our Supreme 

Court has directed that the following standards apply:

[A] PCRA petitioner will be granted relief only when he proves, by 

a preponderance of the evidence, that his conviction or sentence 

resulted from the “[i]neffective assistance of counsel which, in the 

circumstances of the particular case, so undermined the truthdetermining process that no reliable adjudication of guilt or 

innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii). 

“Counsel is presumed effective, and to rebut that presumption, 
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the PCRA petitioner must demonstrate that counsel’s performance 

was deficient and that such deficiency prejudiced him.” 

[Commonwealth v.] Colavita, 606 Pa. [1,] 21, 993 A.2d [874,] 

886 [(Pa. 2010)] (citing Strickland[ v. Washington, 104 S.Ct. 

2053 (1984)]). In Pennsylvania, we have refined the Strickland

performance and prejudice test into a three-part inquiry. See

[Commonwealth v.] Pierce, [515 Pa. 153, 527 A.2d 973 (Pa. 

1987)]. Thus, to prove counsel ineffective, the petitioner must 

show that: (1) his underlying claim is of arguable merit; (2) 

counsel had no reasonable basis for his action or inaction; and (3) 

the petitioner suffered actual prejudice as a result. 

Commonwealth v. Ali, 608 Pa. 71, 86, 10 A.3d 282, 291 (2010). 

“If a petitioner fails to prove any of these prongs, his claim fails.” 

Commonwealth v. Simpson, [620] Pa. [60, 73], 66 A.3d 253, 

260 (2013) (citation omitted). Generally, counsel’s assistance is 

deemed constitutionally effective if he chose a particular course of 

conduct that had some reasonable basis designed to effectuate his 

client’s interests. See Ali, supra. Where matters of strategy and 

tactics are concerned, “[a] finding that a chosen strategy lacked 

a reasonable basis is not warranted unless it can be concluded 

that an alternative not chosen offered a potential for success 

substantially greater than the course actually pursued.” Colavita,

606 Pa. at 21, 993 A.2d at 887 (quotation and quotation marks 

omitted). To demonstrate prejudice, the petitioner must show 

that “there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceedings would have 

been different.” Commonwealth v. King, 618 Pa. 405, 57 A.3d 

607, 613 (2012) (quotation, quotation marks, and citation 

omitted). “‘[A] reasonable probability is a probability that is 

sufficient to undermine confidence in the outcome of the 

proceeding.’” Ali, 608 Pa. at 86–87, 10 A.3d at 291 (quoting 

Commonwealth v. Collins, 598 Pa. 397, 957 A.2d 237, 244 

(2008) (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052)). 

Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).

We conclude that Appellant’s first allegation of ineffectiveness, 

regarding counsel’s failure to request a mistrial, is waived. Appellant merely 

tacks this claim onto his first argument that the court should have granted a 

mistrial after the Commonwealth ostensibly admitted a video containing 
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hearsay. Notably, Appellant’s entire argument to support this ineffectiveness 

claim amounts to the following, single sentence: “Moreover, counsel failed to 

even take up [] [A]ppellant’s right to a fair trial through stepping up and 

seeking the provision of a mistrial when confronted with the conduct leading 

up to the admonition and curative instruction by the trial [c]ourt.” Appellant’s 

Brief at 4. Additionally, Appellant provides no citations to the record or any 

legal authority to support his argument that a mistrial was warranted and that

Attorney Arrowsmith should have moved for such relief. See 

Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (“When 

briefing the various issues that have been preserved, it is an appellant’s duty 

to present arguments that are sufficiently developed for our review. The brief 

must support the claims with pertinent discussion, with references to the 

record and with citations to legal authorities. Citations to authorities must 

articulate the principles for which they are cited.”) (citations omitted). 

Therefore, we deem Appellant’s first ineffectiveness claim waived. See id. 

(“[W]hen defects in a brief impede our ability to conduct meaningful appellate 

review, we may dismiss the appeal entirely or find certain issues to be 

waived.”).

Nevertheless, even if not waived, we would discern no error in the PCRA 

court’s rationale for concluding that no mistrial was warranted and, therefore, 

counsel was not ineffective. Specifically, the court reasoned:

First[, Appellant] claims the trial court should have declared 

(and his counsel should have requested) a mistrial. This claim is 

meritless, because no mistrial was warranted. [Appellant] 
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apparently relies on the trial court’s cautionary statements to 

Assistant District Attorney Lightner when [Appellant]’s counsel, 

Attorney Arrowsmith, appropriately objects to a video tape about 

to be played for the jury:

MR. ARROWSMITH: Your Honor, my objection is based on 

the entirety of this video as highly prejudicial.

THE COURT: Yeah, and let me tell you, [Assistant District] 

Attorney Lightner, in my view we are on the cusp of me 

granting a motion for mistrial, if one’s made, if this video 

blunders into improper territory. You’ve already done 

something that I think is improper, and that is you put in 

somebody else calling this guy and offering a name, which 

is hearsay of the most prejudicial form3...now I don’t know 

what’s in the video...If this video gets into things - and I’ve 

seen enough interviews in which police officers basically try 

to, quote, unquote, dirty up the suspect with a thousand 

irrelevancies, if it goes there, I will grant a -

3 The [c]ourt gave a curative instruction to the jury as 

follows: “Ladies and gentlemen, first of all, I'm the 

gatekeeper of evidence. Here I heard something in my 

ear that’s improper and I’m going to stop it. He’s [the 

detective] investigating what occurred at the Avalon. 

He tells us he put something [o]n the internet and 

some person calls him and gives him a name. 

Absolutely improper. Strike it, disregard it. All right? 

You have a witness from the Avalon who made an 

identification. What someone in cyber space looks at 

and calls and says, not relevant, not admissible, not 

to be considered, not even to be speculated about. 

Wipe it from your mind as much as humanly possible.”

(N.T. [Trial, 5/9/16,] at 90).

MR. LIGHTNER: Your Honor -

THE COURT: -- mistrial - let me finish - I will grant a mistrial 

quickly. So you have to ask yourself how much of this do 

you need to play...

MR. LIGHTNER: Your Honor, the question I propose is at 

11:15 in the interview he asked, “Why does he pick you out 

of a lineup then?” And he goes, “I don’t know. I went there 

on Thursday night.”
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THE COURT: That's fine, that's fine...

([Id. at] 93-95.) There was further discussion about the potential 

danger that the video might show a discussion of [Appellant’s] 

drug use (as a motive for the robbery), but the [c]ourt [gave] the 

parties a chance to review the video tape prior to showing it to 

the jury in order to prevent the disclosure any improper 

statements. ([Id. at] 96). Thus, the potential error of admitting 

improper character or propensity evidence was successfully 

averted. There was no need for the [c]ourt to carry out its threat 

to declare a mistrial, as no improper testimony was elicited. This 

was apparently disappointing to [Appellant], but does not provide 

a meritorious basis for PCRA relief.

PCO at 5-6. The record supports the court’s conclusion. Thus, even had 

Appellant not waived this ineffectiveness claim for our review, we would deem 

it meritless. 

Regarding Appellant’s second claim of ineffectiveness, he contends that 

counsel erred by not calling Ms. Anderson, his alibi witness, to the stand at 

trial. In rejecting this claim, the PCRA court explained:

On February 16, 2018, [Appellant’s PCRA counsel] filed a 

Supplement to Motion for Post Conviction Relief and attached a 

statement by Patricia Anderson as follows:

To whom it may concern[:] 2/15/18

I’m writing this letter to let you know that I was at Jeffrey 

Anderson’s trail (sic) and I was available to testify. On 

October 2, 2015, I worked until midnight and then went to 

the hospital to see my boyfriend. I got home at 2 a.m. and 

was upset because they had told me at the hospital that my

boyfriend would never be able to come home because he 

had to be on oxygen all the time.[] Shortly after I got home 

my son [Appellant] got up to go to the bathroom and I 

explained to him what had happened at the hospital[. W]e 

talked for about 20 minutes and he went back to bed. Our 

rooms are right next to each other and his bedroom door is 

noisy so I know he never came out of the room for the rest 

of the night[.] [B]esides that[,] I am a very light sleeper and 
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wake up to every little sound. At the time I lived in a small 

apartment on the second floor.

Ms. Patricia Anderson

Attachment to Supplement to Motion for Post Conviction Collateral 

Relief, 2/16/18.

An evidentiary hearing was held on April 6, 2018 to address 

the question of whether the failure to call Ms. Anderson as a trial 

witness constituted ineffective assistance of counsel. At the 

evidentiary hearing, Ms. Anderson testified that on the night of 

October 2, 2015[,] she worked until midnight, then went to the 

hospital to see her boyfriend and returned home at 2 a.m., which 

would have been the morning of October 3, 201[5]. Ms. 

Anderson’s alibi is problematic since the robbery took place at 

3:42 a.m. on October 2, 2015, not October 3, 2015. We also note 

that Ms. Anderson denied having been subpoenaed for trial and 

denied talking with Attorney Arrowsmith during a break in the 

trial, about whether she would testify on behalf of her son. We 

found Ms. Anderson’s testimony less than credible.

At the PCRA evidentiary hearing, Attorney Arrowsmith[] 

credibly testified that he made a strategic trial decision in the 

middle of trial not to call Ms. Anderson for two reasons: 1. he 

doubted Ms. Anderson’s accuracy with respect to the date she had 

spoken to her son in the middle of the night (as evidenced by her 

continued confusion in her written statement and during the 

evidentiary hearing)[,] and 2. he was concerned that Ms. 

Anderson lacked credibility. Attorney Arrowsmith had a vivid 

recollection of speaking with Ms. Anderson in the hallway outside 

the courtroom during a break in the trial. He had hoped to use 

her in light of the fact that the victim clearly recognized his client 

as the burglar. However, it was clear that Ms. Anderson was not

able to accurately pinpoint the date she spoke with her son in the 

middle of the night. Furthermore, it was evident to counsel that 

she was “struggling over the truth.” For these bona fide 

reasons[,] Attorney Arrowsmith declined to call this potential 

witness.

PCO at 3-4 (emphasis in original). In sum, the PCRA court found,

that[,] in light of Ms. Anderson’s obvious confusion about the date 

she spoke to her son, she would not have been an asset to 

[Appellant’s] case. Furthermore, we acknowledge and share 
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Attorney Arrowsmith’s legitimate concern about Ms. Anderson’s 

credibility. 

Id. at 9. 

As the PCRA court correctly notes, “[w]here the record supports the 

PCRA court’s credibility determinations, such determinations are binding on a 

reviewing court.” Id. (citing Commonwealth v. Dennis, 17 A.3d 297, 305 

(Pa. 2011) (citing Commonwealth v. Abu-Jamal, 720 A.2d 79, 99 (Pa. 

1998)). Here, the PCRA court found Ms. Anderson’s alibi incredible, or at least 

inaccurate, and believed that Attorney Arrowsmith had a reasonable basis for 

not calling her to the stand at trial. As the record supports the court’s 

credibility determinations, we discern no error in the court’s denying 

Appellant’s second ineffectiveness claim. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/30/2019