J-A28022-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

NICOLE KELLY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2603 EDA 2021

Appeal from the PCRA Order Entered December 9, 2021

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

No(s): CP-51-CR-0002679-2014

BEFORE: PANELLA, P.J., LAZARUS, J., and SULLIVAN, J.

MEMORANDUM BY PANELLA, P.J.: FILED APRIL 4, 2023

Nicole Kelly appeals from the Philadelphia County Court of Common 

Pleas’ order denying her first petition filed pursuant to the Post Conviction 

Relief Act, 42 Pa. C.S.A. §§ 9541-9546. Kelly claims, in essence, the PCRA 

court erred by finding she did not act in self-defense in the stabbing incident 

which led to Kelly’s underlying convictions. She also alleges the PCRA court 

erred by finding her claims of trial counsel’s ineffectiveness were without 

merit. As we disagree on both counts, we affirm.

We glean the facts relevant to this appeal from this Court’s 

memorandum on direct appeal and the PCRA court’s opinion, as well as our 

own review of the record. On September 13, 2013, Kelly was drinking with 

Latoya Johnson in a bar in Philadelphia on Kensington Avenue. After Kelly and 
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Johnson went across the street to another bar, Jack’s Bar, Kelly ended up 

stabbing Johnson 14 times outside of the bar.

The police responded to the scene. Two officers stopped Kelly, who was 

walking southbound on Kensington Avenue. Kelly had blood on her hands, 

clothes and purse. She told the officers she had done nothing wrong and 

offered money to the officers to let her go. Kelly then admitted to the officers 

she had a knife in her purse, which the officers recovered. The officers 

observed a cut on Kelly’s hand. Meanwhile, Johnson, who appeared visibly 

intoxicated to the police, was taken to the hospital for her multiple stab 

wounds. She survived.

Kelly was charged with various offenses, including aggravated assault. 

The matter proceeded to a bench trial, at which both Johnson and Kelly 

testified. Johnson admitted she was intoxicated on the evening of September 

13, 2013, but maintained that no prior altercation occurred before Kelly 

attacked her. Johnson testified Kelly maced her, pulled out a knife, and 

stabbed her several times in the forehead, side and stomach “for no reason 

whatsoever.” N.T., 10/13/2015, at 49.

Kelly, in contrast, maintained she stabbed Johnson in self-defense. She 

testified Johnson was intoxicated and that when she and Johnson went across 

the street to Jack’s Bar, Johnson began yelling at the bartender, who then 

sprayed Johnson with mace. Kelly stated she helped Johnson out of the bar, 

and once outside, Johnson began punching and biting her. Although Kelly 
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conceded she was aware Johnson did not have a weapon, Kelly took out a 

knife and stabbed Johnson in what was, according to Kelly, an effort to defend 

herself. Kelly insisted she only stabbed Johnson five or six times, despite the 

fact that the medical report from the hospital which treated Johnson stated 

Johnson had been stabbed 14 times. The trial court did not find Kelly’s 

testimony credible.

The court convicted Kelly of, among other crimes, aggravated assault 

and sentenced her to an aggregate term of ten to 20 years’ imprisonment. On 

appeal, Kelly specifically argued the Commonwealth failed to disprove her selfdefense claim. This Court disagreed, and affirmed Kelly’s judgment of 

sentence. Our Supreme Court denied her petition for allowance of appeal.

Kelly filed a timely pro se PCRA petition. Counsel was appointed, and 

filed an amended petition. Kelly alleged trial counsel had been ineffective for 

failing to call Michelle Troyer, the bartender at Jack’s Bar on the night of the 

stabbing, to testify, and for failing to obtain Kelly’s medical records or to call 

a medical expert to testify about the injuries sustained by Kelly and Johnson. 

Kelly attached to her petition an affidavit purportedly from Michelle Troyer, as 

well as an affidavit from Kelly’s mother, Antoinette Tonzelli. 

The PCRA court held a hearing on the matter. Troyer testified at the 

hearing. She testified she was working as the bartender at Jack’s Bar on 

September 13, 2013. She recounted that Johnson came into the bar and was 

yelling and acting aggressive, and appeared intoxicated. Troyer stated she 
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refused to serve Johnson alcohol, which led Johnson to become more 

aggressive. Troyer maintained that she feared for her safety, and proceeded 

to spray mace at Johnson. According to Troyer, several male patrons then 

removed Johnson from the bar, and Kelly followed her outside. Troyer stated 

she heard the two women yelling, but did not see any part of the altercation 

between them. She testified that Johnson was bigger and taller than Kelly. 

She also stated she was first contacted by Kelly’s family in 2016, after the 

trial.

Kelly’s mother, Antoinette Tonzelli, also testified at the hearing. She 

maintained she told Kelly’s trial counsel that the bartender at Jack’s Bar had 

been involved in the incident but that, to the best of her knowledge, trial 

counsel did not contact the bartender. She testified she did not know the 

bartender’s name prior to trial. Tonzelli also testified she attempted to find 

Troyer before Kelly’s trial, but was unable to do so. Trial counsel did not testify.

Following the hearing, the PCRA court dismissed Kelly’s petition as 

meritless. Kelly filed a notice of appeal, and complied with the court’s order to 

file a Pa.R.A.P. 1925(b) statement. In her statement, Kelly raised four issues, 

essentially arguing the PCRA court erred by concluding: (1) Kelly used an 

amount of force in excess of what was necessary for self-defense; (2) counsel 

was not ineffective for failing to call a medical expert regarding Johnson’s 

injuries; (3) counsel was not ineffective for failing to call Michelle Troyer as a 
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witness; (4) counsel was not ineffective for failing to investigate other 

potential witnesses at Jack’s Bar. 

In its Pa.R.A.P. 1925(a) opinion, the PCRA court rejected all of Kelly’s 

claims. It found her claim regarding excessive force for purposes of a selfdefense claim was previously litigated as this Court determined on direct 

appeal that Kelly had not acted in self-defense. However, “in an abundance of 

caution,” the PCRA court conducted its own analysis and found it was clear 

Kelly had not acted in self-defense. As for the ineffectiveness claims, the court 

found Kelly’s claim regarding counsel’s failure to call a medical expert was also 

previously litigated as well as meritless, and her claims that counsel was 

ineffective for failing to call Troyer and other witnesses from Jack’s Bar at trial 

were both without merit. On appeal, Kelly argues the PCRA court erred by 

rejecting her claims and denying her PCRA petition.

Our review of an order denying a PCRA petition is limited to examining 

whether the PCRA court’s determinations are supported by the record and the 

court’s decision is free of legal error. See Commonwealth v. Shaw, 217 

A.3d 265, 269 (Pa. Super. 2019). Although we give great deference to the 

factual findings of the PCRA court and will not disturb those findings unless 

they have no support in the record, we apply a de novo standard of review to 

the PCRA court’s legal conclusions. See Commonwealth v. Benner, 147 

A.3d 915, 919 (Pa. Super. 2016).
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Kelly first argues, in essence, the PCRA court erred in finding that she 

used excessive force by stabbing Johnson and therefore did not act in selfdefense. This claim fails for multiple reasons. 

First, as the Commonwealth points out, Kelly did not raise this claim 

related to self-defense in her PCRA petition, and, consequently, the claim is 

waived. See Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa. 2004) 

(stating that claims not raised in a petitioner’s PCRA petition and only raised 

for the first time on appeal are waived). Moreover, as the PCRA court found, 

Kelly previously litigated the issue of whether she acted in self-defense on 

direct appeal. This Court addressed Kelly’s self-defense claim on the merits:

[V]iewing the evidence in the light most favorable to the 

Commonwealth as verdict winner, it established that [Kelly] 

maced and recklessly stabbed [Johnson] in her head and torso 

fourteen times, assuring that [Johnson] was injured; she could 

not have reasonably believed it was necessary to use deadly force 

to save herself from serious bodily injury where she admitted to 

knowing that [Johnson] was unarmed; and she violated her duty 

to retreat where they were on a public street. ...

Based on the foregoing, and our review of the record as a 

whole, we conclude the trial court properly found that the 

Commonwealth provided sufficient evidence to establish that 

[Kelly] was not acting in self-defense when she committed the 

aggravated assault of [Johnson].

Commonwealth v. Kelly, 1411 EDA 2016, at 6-7 (Pa. Super. filed August 

16, 2017) (unpublished memorandum) (citations omitted).1 

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1 To the extent Kelly’s claim in this appeal differs from the one she raised on 

direct appeal, it is waived as she could have raised it on direct appeal. See 42 

Pa.C.S.A. § 9544(b).
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We agree with the PCRA court that Kelly’s first issue, even if not waived, 

was previously litigated and therefore not cognizable under the PCRA. See 42 

Pa. C.S.A. § 9543(a)(3); 42 Pa. C.S.A. § 9544(a)(2). 

Kelly clumps all three of her claims that trial counsel was ineffective into 

a singular claim, her second and final one. Counsel is presumed to have been 

effective. See Commonwealth v. Brooks, 839 A.2d 245, 248 (Pa. 2003). In 

order to overcome that presumption and prevail on a claim of ineffectiveness, 

Kelly must establish that: (1) the underlying claim has arguable merit; (2) 

counsel had no reasonable basis for their conduct; and (3) she was prejudiced 

by counsel’s ineffectiveness, i.e. there is a reasonable probability that because 

of the act or omission in question, the outcome of the proceeding would have 

been different. See id. As is true for all petitioners, Kelly’s “failure to prove 

any one of the three prongs results in the failure of [her] claim.” 

Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa. Super. 2011) (citation 

omitted).

All three of Kelly’s ineffectiveness claims involve trial counsel’s failure to 

call a potential witness. In order to prevail on such a claim, Kelly must also 

show that: (1) the witness existed; (2) the witness was available and willing 

to testify for the defense; (3) defense counsel knew of, or should have known 

of, the existence of the witness; and (4) the the absence of the testimony 

prejudiced her. See Commonwealth v. Sneed, 45 A.3d 1096, 1109 (Pa. 
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2012). To show prejudice in this context, Kelly must demonstrate the 

witness’s testimony would have been helpful to her defense. See id. 

Kelly first asserts trial counsel was ineffective for failing to consult and 

call a medical expert to testify about Johnson’s injuries. Specifically, Kelly 

asserts “a medical expert would have testified that despite having fourteen 

wounds[,] [Johnson] was not stabbed fourteen times because a knife, 

especially a sharp one, can cause multiple wounds in one swipe.” Appellant’s 

Brief at 19. This claim fails for several reasons. 

In the first place, Kelly does not argue all three prongs of the 

ineffectiveness test as it relates to this claim and the claim is waived for that 

reason alone. See Commonwealth v. Spotz, 18 A.3d 244, 282 (Pa. 2011) 

(stating that a petitioner’s ineffectiveness claim must meaningfully address all 

three prongs of the ineffectiveness test or it will be deemed waived). 

Moreover, as Kelly acknowledges, to establish a claim that counsel was 

ineffective for failing to call a witness, she must show, inter alia, the witness 

existed and was willing and available to testify for the defense. See Sneed,

45 A.3d at 1109. Here, Kelly has never identified, in her petition or otherwise, 

a medical expert who would have testified in support of her defense theory. 

Her claim also fails for this reason. See Commonwealth v. Nelson, 523 A.2d 

728, 735 (Pa. 1987) (denying a claim of ineffectiveness for failing to present 

expert medical testimony when the petitioner did not identify an expert who 

would have testified favorably to his defense theory). No relief is due. 
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Next, Kelly claims the PCRA court erred by finding counsel was not 

ineffective for failing to call Troyer, the bartender working at Jack’s Bar, to 

testify at trial. This claim also does not offer any basis for relief.

In rejecting this claim, the PCRA court first found that the affidavit of 

Kelly’s mother, Antoinette Tonzelli, established that Troyer was not available 

to testify at Kelly’s trial. According to the PCRA court, the affidavit established 

Troyer was unable to be located before Kelly’s trial, and that Tonzelli herself 

was unable to make contact with Troyer until after Kelly’s trial. See Trial Court 

Opinion, 5/16/2022, at 13-14. Kelly’s response to the court’s finding of 

Troyer’s unavailability at trial is nothing more than a bald assertion that Troyer 

was available to testify because she continued to work at Jack’s Bar until at 

least one year after Kelly’s trial. This undeveloped argument fails to convince 

us the PCRA court erred by concluding Troyer was unavailable to testify at 

trial and therefore, counsel was not ineffective for failing to call her as a 

witness at trial. See Sneed, 45 A.3d at 1109. 

Moreover, the PCRA court also noted there were numerous “glaring” 

issues with the affidavit attached to the petition purportedly submitted by 

Troyer, not the least of which were that Troyer denied writing the affidavit at 

the hearing and the notarized date of the affidavit meant the affidavit was 

available at the time of Kelly’s direct appeal. Even though the court found the 

affidavit not to be credible, it did find Troyer’s testimony at the hearing to be 

credible. Even so, the court found Kelly had not suffered any prejudice:
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[Troyer] admitted that she was unable to watch the fight 

and that she assumed Johnson] had been the one who used a 

knife during the altercation. This information would not have 

changed the outcome of [Kelly’s] trial considering that [Kelly] 

knew the victim was unarmed, violated her duty to retreat from 

the public street, fled the scene instead of calling for help, and 

offered to give money to [police officers] in exchange for letting 

[her] go. The information in [Troyer’s] affidavit was not sufficient 

to overcome these factors and lead a reasonable person to 

believe that [Kelly] used a justifiable level of lethal force in selfdefense.

Considering that, as stated in [Commonwealth v. Jones, 

332 A.2d 464, 466 (Pa. Super. 1974)], the mere act of wielding 

a knife amounts to deadly force [and a claim of self-defense is 

unavailable when an individual escalates a fist fight by wielding a 

knife], [Troyer’s] affidavit did not proffer sufficient evidence to 

convince this court that her testimony at trial would have 

exonerated [Kelly], especially when [Troyer] admitted she did not 

even witness the altercation between [Kelly and Johnson].

Trial Court Opinion, 5/16/2022, at 16-17. 

While we acknowledge Troyer’s testimony would have challenged the 

credibility of Johnson’s testimony about how the altercation started, it would 

not have changed the key, undisputed circumstances: that Kelly stabbed an 

unarmed Johnson multiple times on a public street. Kelly has not offered this 

Court any persuasive reason to disturb this conclusion by the PCRA court that 

Kelly failed to establish she was prejudiced by the absence of Troyer’s 

testimony at trial. For all the reasons outlined above, we agree with the PCRA 

court that this issue does not afford Kelly with any relief.

Finally, Kelly asserts counsel was ineffective for failing to investigate or 

call other potential witnesses who were in Jack’s Bar on the night of the 

stabbing to testify. This claim is waived for three reasons: (1) it was not raised 
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in Kelly’s PCRA petition, see Santiago, 855 A.2d at 691;2 (2) it is completely 

undeveloped in Kelly’s appellate brief, see Spotz, 18 A.3d at 282; and (3) 

Kelly fails to identify any witnesses who would have testified at trial, much 

less establish that their testimony would have been helpful to her defense, 

see Sneed, 45 A.3d at 1109. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/4/2023

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2

In her pro se PCRA petition, Kelly does name two witnesses, Jackie Thursby 

and “Sam,” each of whom would, according to Kelly, testify “as to what she 

saw.” PCRA Petition, 4/24/2019, at 7. However, Kelly did not make a specific 

claim about these witnesses or attach certifications from them. The issue is 

not raised in the amended petition.