J-A29041-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JAMES LEONARD RUSSELL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 164 WDA 2022

Appeal from the PCRA Order Entered January 12, 2022,

in the Court of Common Pleas of Allegheny County,

Criminal Division at No(s): CP-02-CR-0009272-2017, 

CP-02-CR-0012425-2017.

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

MEMORANDUM BY KUNSELMAN, J.: FILED: JANUARY 19, 2023

James Leonard Russell appeals from the order denying his first timely 

petition filed pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. 

§§ 9541-46. We affirm.

The pertinent facts and procedural history may be summarized as 

follows: On March 1, 2018, a jury convicted Russell at two separate dockets 

of various sex offenses involving two minors, S.G and I.W. On May 21, 2018, 

the trial court sentenced him to serve an aggregate term of 226 to 472 months 

of imprisonment and a consecutive five-year probationary term. Following the 

denial of his post-sentence motion, Russell appealed to this Court. In that

appeal, he challenged the trial court’s decision to join the two dockets for trial, 

as well as several challenges to the sufficiency of the evidence supporting his 

convictions involving I.W.
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On May 29, 2020, we rejected Russell’s claims by adopting the trial 

court’s opinion, and our Supreme Court denied his petition for allowance of 

appeal on October 5, 2020. See Commonwealth v. Russell, 237 A.3d 495 

(Pa. Super. 2020) (non-precedential decision), appeal denied, 240 A.3d 97 

(Pa. 2020). 

Russell filed a pro se PCRA petition on April 12, 2021. In this petition, 

Russell asserted several claims, including a claim that trial counsel was 

ineffective “by not preparing himself or [Russell] for trial where the only 

evidence of the crimes were the accusations of the accusers.” PCRA Petition, 

4/12/21, at 4. The PCRA court appointed two different attorneys who later 

were permitted to withdraw, and the court again appointed counsel. 

On November 5, 2021, PCRA counsel filed a “no-merit” letter and motion 

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

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

banc). On December 20, 2021, the PCRA court issued a Pa.R.Crim.P. 907 

notice of its intent to dismiss Russell’s petition without a hearing and granted 

PCRA counsel’s motion to withdraw. Russell did not file a response. By order 

entered January 12, 2022, the PCRA court denied Russell’s petition. This 
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appeal followed.1 Both Appellant and the PCRA court have complied with 

Pa.R.A.P. 1925.

Russell raises the following four issues, which we have reordered for 

ease of disposition:

I. Did the [PCRA] court err when it dismissed [Russell’s] 

claim of a due process violation by the Commonwealth 

where the prosecuting assistant district attorney 

made an erroneous and improper statement to the 

jury in her closing argument?

II. Did the [PCRA] court err when it dismissed [Russell’s] 

claim of the weight of the prosecution’s evidence 

being insufficient to support the convictions of any of 

the charges [at either docket]?

III. Did the [PCRA] court err when it failed to reconsider 

[Russell’s] request to find that the Commonwealth did 

not meet its burden of proof beyond a reasonable 

doubt based on newly discovered evidence?

IV. Did the [PCRA] court err when it dismissed [Russell’s] 

claim of ineffective assistance of counsel, where 

counsel failed to call [relevant] witnesses, failed to 

object to inappropriate comment by prosecuting ADA, 

failed to motion the court for a [judgment] of acquittal 

upon the completion of the Commonwealth’s case, 

[and] failed to offer a compromise to the jury 

instruction?

Russell’s Brief at 2-2b (excess capitalization omitted).

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1 Russell filed one notice of appeal listing both docket numbers in violation of 

Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). However, because 

the PCRA court failed to specifically instruct Russell that he needed to file two 

separate notices of appeal, a breakdown in the court system occurred which 

allows us to review the merits of Russell’s claims. See Commonwealth v. 

Larkin, 235 A.3d 350, 354 (Pa. Super. 2020) (en banc).
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This Court’s standard of review regarding an order dismissing a petition 

under the PCRA is to ascertain whether “the determination of the PCRA court 

is supported by the evidence of record and is free of legal error. The PCRA 

court’s findings will not be disturbed unless there is no support for the findings 

in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-92 

(Pa. Super. 2013) (citations omitted). Moreover:

The PCRA court has discretion to dismiss a petition 

without a hearing when the court is satisfied that there are 

no genuine issues concerning any material fact, the 

defendant is not entitled to post-conviction collateral relief, 

and no legitimate purpose would be served by further 

proceedings. To obtain a reversal of a PCRA court’s decision 

to dismiss a petition without a hearing, an appellant must 

show that he raised a genuine issue of material fact which, 

if resolved in his favor, would have entitled him to relief, or 

that the court otherwise abused its discretion in denying a 

hearing. 

Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014) (citations 

omitted).

To be eligible for post-conviction relief, a petitioner must plead and 

prove by a preponderance of the evidence that his conviction or sentence 

resulted from one or more of the enumerated errors or defects in 42 Pa.C.S.A. 

section 9543(a)(2), and that the issues he raises have not been previously 

litigated or waived. Commonwealth v. Carpenter, 725 A.2d 154, 160 (Pa. 

1999). An issue has been "previously litigated" if the highest appellate court 

in which the petitioner could have had review as a matter of right has ruled 

on the merits of the issue, or if the issue has been raised and decided in a 
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proceeding collaterally attacking the conviction or sentence. Carpenter, 725 

A.2d at 160; 42 Pa.C.S.A. § 9544(a)(2), (3). If a claim has not been 

previously litigated, the petitioner must then prove that the issue was not 

waived. Carpenter, 725 A.2d at 160. An issue will be deemed waived under 

the PCRA “if the petitioner 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.” 42 Pa.C.S.A. § 9544(b).

Because Russell could have raised his first issue regarding prosecutorial 

misconduct in his direct appeal it is waived. Absent waiver, his claim fails 

because no prosecutorial misconduct occurred. Russell asserts that the trial 

court erred in permitting the assistant district attorney to state in her closing 

argument that the testimony of a single witness, if believed by the jury, was 

sufficient to support a conviction. This is a correct statement of the law that, 

if believed by the fact finder, “even the uncorroborated testimony of a single 

witness may alone be sufficient to convict a defendant.” Commonwealth v. 

Gilliam, 249 A.3d 257, 268 (Pa. Super. 2021) (citation omitted); see also

18 Pa.C.S.A. § 3106 (providing that a complainant’s testimony need not be 

corroborated in a prosecution for a sex offense).

Moreover, trial court instructed that the statements and arguments of 

the attorneys are not evidence, and that the trial court—not the attorneys—

provides the law pertinent to the jury’s decision. See N.T., 2/27-3/2/18, at 

22, 28, 369. Indeed, after the attorneys’ closing arguments, the trial court 
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later instructed the jury in a manner consistent with the assistant district 

attorney’s statement. Id. at 374, 387. Thus, even if cognizable under the 

PCRA, Russell’s first issue affords him no relief.

In his second issue, Russell challenges the sufficiency of the evidence 

for all his convictions involving both victims. As noted above, Russell raised 

several challenges to the sufficiency involving I.W. on direct appeal. Thus, to 

the extent this Court has already rejected them, the claims are previously 

litigated under the PCRA. Section 9544(a), supra. As to any convictions he 

did not challenge involving I.W., as well as his sufficiency claim regarding all 

his convictions involving S.G., the claims are waived because they were not 

raised on direct appeal. Section 9544(b), supra.

In his third issue, Russell claims that the PCRA court should have 

reconsidered his guilty verdicts given alleged newly-discovered evidence—a 

newspaper article in which the district attorney of Allegheny County 

commented on his decision not to prosecute in an unrelated case. The PCRA 

court found this issue waived because it was being raised for the first time on 

appeal. PCRA Court Opinion, 5/9/22, at 5. Even if properly preserved, it 

affords Russell no relief because it has no relevance to the evidence the 

Commonwealth presented to support Russell’s convictions.

In his fourth and final issue, Russell raises multiple claims of trial 

counsel’s ineffectiveness. To obtain relief under the PCRA premised on a claim 

that counsel was ineffective, a petitioner must establish by a preponderance 
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of the evidence that counsel’s ineffectiveness so undermined the truth 

determining process that no reliable adjudication of guilt or innocence could 

have taken place. Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 

2009). “Generally, counsel’s performance is presumed to be constitutionally 

adequate, and counsel will only be deemed ineffective upon a sufficient 

showing by the petitioner.” Id. This requires the petitioner to demonstrate 

that: (1) the underlying claim is of arguable merit; (2) counsel had no 

reasonable strategic basis for his or her action or inaction; and (3) the 

petitioner was prejudiced by counsel's act or omission. Id. at 533. A finding 

of "prejudice" requires the petitioner to show "that there is a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different." Id. A failure to satisfy any prong of 

the test for ineffectiveness will require rejection of the claim. 

Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).

As noted above, Russell only raised one issue regarding trial counsel’s 

ineffectiveness in his pro se PCRA petition. Thus, to the extent Russell raises 

new claims of trial counsel’s ineffectiveness for the first time on appeal, they 

are waived. Pa.R.A.P. 302(a). The PCRA court found that the only 

ineffectiveness claim raised and/or suggested by Russell’s petition was trial 

counsel’s failure to call witnesses. PCRA Court Opinion, 5//9/22, at 4. 

To establish that trial counsel was ineffective for failing to investigate 

and/or call a witness at trial, a PCRA petitioner must demonstrate that: 
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(1) the witness existed; (2) the witness was available; (3) 

trial counsel was informed of the existence of the witness or 

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

witness was prepared to cooperate and would have testified 

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

prejudiced appellant.

Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012).

Our review of the record supports the PCRA court’s conclusion that 

Russell “failed to identify the testimony of any proposed witnesses and how 

such testimony would have affected the outcome.” PCRA Court Opinion, 

5/9/22, at 4. Indeed, as the court further noted, Russell could not establish 

prejudice given that he conceded in his Rule 1925(b) statement that “none of 

the witnesses [could] prove my innocence.” Id. Thus, because Russell has 

failed to establish any Sneed factors, his ineffectiveness claim fails.

In sum, the issues raised by Russell are either previously litigated, 

waived, or otherwise lack merit. We therefore affirm the PCRA court’s order 

denying him post-conviction relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/19/2023