J-S10017-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

HENRY HILL,

Appellant No. 3458 EDA 2014

Appeal from the PCRA Order Entered November 24, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-1000691-2003

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 10, 2016

Appellant, Henry Hill, appeals from the November 24, 2014 order 

denying his petition filed under the Post Conviction Relief Act (PCRA), 42 

Pa.C.S. §§ 9541-9546. After careful review, we affirm.

The trial court set forth the facts of this case, as follows:

On the afternoon of September 29, 2002, the decedent, 

Lance Harris, was standing on the corner of 27th and Tasker 

Streets in South Philadelphia. He had been in the neighborhood 

all that day with his cousin “Kelly” who was involved in an 

ongoing dispute with a group of people from the neighborhood. 

They had accused him of stealing something from one of them 

and had argued with him about it earlier that day.

One of the Commonwealth witnesses, Gia Calloway, had 

actually overheard the defendant and other males threatening to 

“get Kelly” on the day of the shooting. They were all standing on 

a porch talking about the problem they had with Kelly when one 

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* Retired Senior Judge assigned to the Superior Court.
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of them informed the group that Kelly was at the corner of 27th

and Tasker Streets. Ms. Calloway continued walking past the 

porch and on to the corner. She told Kelly and the decedent that 

there were some “guys” who were “coming for them[,”] and that 

they should get off that corner.

Ms. Calloway testified that Kelly tried to get the decedent 

to leave the area with him, but that he refused to do so. The 

decedent said that he was staying because they did not have a 

problem with him, and that they were not going to do anything 

to him. Kelly left the corner, after that conversation with his 

cousin, and ran down the street. 

[Appellant] and his group arrived at the corner shortly 

thereafter, and he immediately walked across the street and 

approached the decedent. He asked the decedent if he could 

speak to him, and they walked back across the street together. 

Ms. Calloway testified that [Appellant] started telling the 

decedent that “you’re not from around here” along with other 

similar comments as the two of them exchanged words.

In the midst of that conversation, [Appellant] punched the 

decedent in the face and he fell to the ground. As the decedent 

attempted to get up, [Appellant] pulled out what Ms. Calloway 

described as a “black, shiny nine millimeter” handgun. 

[Appellant] fired one shot at the side of the decedent’s abdomen. 

He ran from the scene as the decedent lay on the ground 

mortally wounded.

Uniformed police officers arrived at the scene before any 

emergency medical personnel were able to get there. They 

picked up the decedent, placed him [in] a patrol car, and 

transported him to the hospital. He was pronounced dead at the 

hospital after emergency operation procedures were 

unsuccessfully performed.

The Commonwealth called another eyewitness, Tanisha 

Saunders, who corroborated the account given by Ms. Calloway 

about [Appellant’s] walking up and shooting the decedent. A 

third eyewitness, Rob Curry, had given the police a statement in 

which he recounted the exact same facts in some detail. 

However, when called by the Commonwealth to testify during 

the trial, he contended that he only heard the shooting, and that 

he did not actually see any of the interaction between 

[Appellant] and the deceased.
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[Appellant] took the witness stand at trial, and testified on 

his own behalf. He admitted to walking over to the decedent, 

crossing the street with him, and engaging him in a 

conversation. He testified, however, that the decedent became 

angry while they were talking, and pulled out a knife and 

“swung” it at him. He told the jury that he avoided being 

stabbed only because he was able to back up very quickly. He 

stated that he felt “threatened” and that his “life was in danger”. 

As a result, he “reached and pulled the gun out and shot him”. 

[Appellant] also admitted fleeing the scene of the crime, 

and leaving Philadelphia to go to Georgia. He contended that he 

only went to and stayed in Georgia so that his family would have 

time to raise money for his lawyer. He was eventually located 

by Philadelphia homicide detectives, arrested in Georgia, and 

brought back to Philadelphia on a fugitive warrant. Upon his 

return, he was charged with murder and the other related 

weapons offenses.

Trial Court Opinion, 9/15/08, at 3-6.

Following a multi-day jury trial that concluded on December 8, 2004, 

Appellant was convicted of first-degree murder, possessing an instrument of 

crime, and carrying a firearm without a license. 

On February 24, 2005, the trial court sentenced [Appellant] to 

life imprisonment for the murder conviction, 31⁄2 to 7 years of 

imprisonment for carrying a firearm without a license, and 21⁄2 to 

5 years of imprisonment for the PIC conviction. [Appellant] filed 

a timely direct appeal, which this Court dismissed on April 5, 

2006 for failure to file an appellate brief. [Appellant] then filed a 

timely pro se PCRA petition on May 8, 2006. Counsel was 

appointed, who filed an amended PCRA petition, and 

[Appellant’s] direct appeal rights were reinstated. [Appellant] 

filed a direct appeal, and this Court upheld his judgment of 

sentence on March 6, 2009. [Commonwealth v. Hill, 972 A.2d 

553 (Pa. Super. 2009) (unpublished memorandum)]. Our 

Supreme Court dismissed [Appellant’s] petition for allowance of 

appeal on September 9, 2009. [Commonwealth v. Hill, 980 

A.2d 605 (Pa. 2009).] On February 10, 2010, [Appellant] filed a 

second, timely, pro se PCRA petition. Counsel was appointed 

who filed an amended petition, and on April 2, 2012, the PCRA 

court dismissed [Appellant’s] petition.
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Commonwealth v. Hill, No. 948 EDA 2012, unpublished memorandum at 

1-2 (Pa. Super. filed July 8, 2012) (footnote omitted). 

Appellant filed a timely appeal with this Court, arguing that the PCRA 

court erred by rejecting his claim that trial counsel, Gerald Ingram, Esq., 

acted ineffectively by failing to call two witnesses, Sarah McCluskey and 

Christopher Tate. According to Appellant, McCluskey and Tate could have 

corroborated his testimony that he shot Harris in self-defense. After review, 

we concluded that because the PCRA court had not conducted an evidentiary 

hearing, the record was insufficient to permit us to determine whether 

Appellant had satisfied Commonwealth v. Brown, 767 A.2d 576, 581-82 

(Pa. Super. 2001), which sets forth a five-part test for proving that counsel 

acted ineffectively by not calling a witness. See Hill, No. 948 EDA 2012, 

unpublished memorandum at 6. Accordingly, we vacated, in part, the PCRA 

court’s April 2, 2012 order denying Appellant’s petition and remanded for 

further proceedings.1 

On remand, the PCRA court conducted bifurcated evidentiary hearings 

on January 16, 2014, June 12, 2014, and August 14, 2014. On November 

24, 2014, the PCRA court once again denied Appellant’s petition. Appellant 

filed the present, timely appeal, as well as a timely Pa.R.A.P. 1925(b) 

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1 We affirmed the court’s order to the extent that it denied Appellant’s claim 

that Attorney Ingram acted ineffectively by not calling a third witness, Karen 

Williams, to offer character testimony on Appellant’s behalf. Id. at 6.
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statement. The PCRA court filed an opinion on March 24, 2015. Herein, 

Appellant presents two issues for our review:

1) The PCRA [c]ourt erred by denying post conviction relief 

where trial counsel, pursuant to the standards set forth in [] 

Brown, 767 A.2d [at] 581-82 ...[,] was ineffective for failing to 

interview and call Christopher Tate and Sara[h] McCluskey[2]as 

fact witnesses to corroborate [Appellant’s] self-defense claim in 

his homicide trial.

2) The PCRA [c]ourt erred in permitting into evidence and 

considering C-1[,] mistakenly referenced as C-2[,] during [the 

August 14, 2014] bifurcated evidentiary hearing. (purported 

Biographical Report of Christopher Tate which contained a 

statement allegedly made by Christopher Tate to an unavailable 

police officer to the effect that he (Tate) was not present when 

the incident occurred.[)]

Appellant’s Brief at 4 (emphasis in original).

We begin by noting that, “[t]his Court’s standard of review from the 

grant or denial of post-conviction relief is limited to examining whether the 

lower court’s determination is supported by the evidence of record and 

whether it is free of legal error.” Commonwealth v. Morales, 701 A.2d 

516, 520 (Pa. 1997) (citing Commonwealth v. Travaglia, 661 A.2d 352, 

356 n.4 (Pa. 1995)).

In Appellant’s first issue, he claims that Attorney Ingram acted 

ineffectively by not calling Sarah McCluskey and/or Christopher Tate as 

____________________________________________

2 Appellant spells McCluskey’s first and last name differently throughout his 

brief. We will spell her name, “Sarah McCluskey,” as it is set forth in the 

record of the PCRA hearing conducted on January 1, 2014. See N.T. PCRA 

Hearing, 1/16/14, at 36.
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defense witnesses at trial.3 Where a PCRA petitioner claims that he received 

ineffective assistance of counsel, 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 truth-determining 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, 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 

____________________________________________

3

In regard to both McCluskey and Tate, Appellant suggests at points 

throughout his brief that Attorney Ingram was ineffective for failing to 

interview these witnesses, not just for failing to call them to the stand at 

trial. See Appellant’s Brief at 18, 19. Appellant does not acknowledge, 

however, that, “the question of failing to interview a witness is distinct from 

failure to call a witness to testify.” Commonwealth v. Dennis, 950 A.2d 

945, 960 (Pa. 2008) (citations omitted). The Dennis Court clarified that an 

attorney’s failure to interview witnesses is not per se prejudicial; instead, the 

burden remains on the petitioner “to plead and prove sufficient prejudice” 

resulted from both counsel’s failure to interview and the failure to call the 

omitted witness. Id. at 960-61. Here, Appellant does not develop any 

meaningful argument regarding counsel’s failure to interview McCluskey 

and/or Tate, instead simply interspersing in his brief several cursory 

references to counsel’s failure to do so. Accordingly, we will focus our 

review on whether counsel erred by not calling these individuals as 

witnesses at trial.
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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).

Additionally, this Court stated in Brown:

To prevail on a claim of trial counsel's ineffectiveness for 

failure to call a witness, the [appellant] must show: (1) 

that the witness existed; (2) that the witness was 

available; (3) that counsel was informed of the existence 

of the witness or should have known of the witness's 

existence; (4) that the witness was prepared to cooperate 

and would have testified on appellant's behalf; and (5) 

that the absence of the testimony prejudiced appellant.

Commonwealth v. Fletcher, 561 Pa. 266, 292, 750 A.2d 261, 

275 (2000). Thus, trial counsel will not be found ineffective for 

failing to investigate or call a witness unless there is some 

showing by the appellant that the witness's testimony would 

have been helpful to the defense. Commonwealth v. Auker,

545 Pa. 521, 548, 681 A.2d 1305, 1319 (1996). “A failure to call 
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a witness is not per se ineffective assistance of counsel for such 

decision usually involves matters of trial strategy.” Id.

Brown, 767 A.2d at 581-82.

Appellant first challenges Attorney Ingram’s failure to call Sarah 

McCluskey. According to Appellant, 

[a]t [the PCRA] evidentiary hearing[,] [Sarah McCluskey] 

testified that on the day [A]ppellant killed decedent in self[-] 

defense, around 12 o’clock in the afternoon, she was within 15 

feet [of the shooting] amongst a crowd of over 10 people that 

witnessed the incident. Her view was unobstructed. 

[McCluskey] testified that she saw “[Appellant] swing on 

[Harris]. [Harris] pulled out a knife. [She] heard a shot and 

everybody started running. (Evidentiary Hearing, 1-16-14 N.T., 

pp. 41-44, 60, 62-64) [McCluskey] further testified that she was 

willing to provide a statement of what she witnessed. ([Id. at] 

pp. 48-49) [Sarah McCluskey’s] testimony that decedent had a 

knife in hand when he was shot by [A]ppellant is consistent and 

credible. ([Id.] at 44, 63-66, 83)

Appellant’s Brief at 17-18. 

Initially, it is obvious that McCluskey exists (as she testified at the 

PCRA hearing), and the record confirms Appellant’s claims that she was 

available and willing to testify on his behalf at the time of trial. See N.T. 

PCRA Hearing, 1/16/14, at 45. Thus, we conclude that the first, second, and 

fourth Brown factors are satisfied. We will also accept that Attorney Ingram 

knew, or should have known, about McCluskey, as the PCRA court found this 

factor met. See PCRA Court Opinion (PCO), 3/24/15, at 4 (stating that 

Attorney Ingram “knew that these witnesses[, i.e., both McCluskey and 

Tate,] existed and were available”). Therefore, the third prong of Brown 

was proven by Appellant.
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However, we agree with the PCRA court that Appellant failed to prove 

the final Brown factor of demonstrating that the omission of McCluskey’s 

testimony caused him prejudice. See PCO at 5 (“Appellant cannot 

demonstrate that the testimony of either of these witnesses would have 

been helpful to the defense.”). Appellant claims that he was prejudiced by 

McCluskey’s absence because her testimony would have corroborated his 

claim of self-defense. See Appellant’s Brief at 21-22. For the following 

reasons, we disagree. 

At trial, Appellant testified that right before the shooting, he and the 

victim, Lance Harris, talked for “a good two, three minutes” before they 

“squared off and faced each other....” N.T. Trial, 12/2/04, at 130. Appellant 

described what happened next, as follows:

[Appellant:] As we [were] talking, I’m just telling him just go 

ahead and leave, like you know how it is around here, I know 

you and if something happen [sic] to you, it’s goin’ [sic] be on 

me because you know I’m out here, I’m always out here, I live 

around here, so go ahead and leave before something happen 

[sic]. He said I ain’t [sic] got to leave, this, that and that, and 

then he pulled out a knife, so I tried to back up and he swung. 

So I reached and pulled the gun out and shot him. 

Id. Appellant also claimed that when Harris pulled the knife, Appellant fell 

back onto a gate behind him, and Harris “came at [him] in a thrusting 

motion.” Id. at 131-132. Appellant stated that when he pulled out his gun, 

one shot was fired, but he did not know if he pulled the trigger or the gun 

just “went off.” Id. at 138. Appellant repeatedly denied punching Harris at 

any point during the encounter. Id. at 142, 162.
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The testimony of Sarah McCluskey at the PCRA hearing did not fully 

corroborate Appellant’s testimony, and actually may have hindered his selfdefense claim. Namely, McCluskey repeatedly stated that Appellant punched 

Harris prior to Harris’ pulling out a knife. N.T. PCRA, 1/16/14, at 44, 62. 

McCluskey testified that after being hit, Harris “went backward” into a gate 

behind him. Id. at 66. She then stated, “when [Harris] fell back and pulled 

out his hand[,] that’s when you heard the shot.” Id. 

McCluskey’s testimony that Appellant punched Harris and that Harris

fell backward before Appellant shot him differs significantly from Appellant’s 

testimony that he never struck Harris, and that it was Appellant who fell 

backward during the encounter. Additionally, while McCluskey claimed that 

Harris pulled out a knife during the incident, her testimony did not 

corroborate Appellant’s testimony that Harris thrusted that knife at 

Appellant. 

We also stress that McCluskey’s testimony was more corroborative of 

the Commonwealth’s evidence, specifically the testimony of Gia Calloway 

and Tanisha Saunders, and the statement that Rob Curry gave to police 

shortly after the shooting. Specifically, Curry told police that Appellant 

“punched [Harris] two times and [Harris] ... fell to the ground, and when he 

was trying to get up, that’s when [Appellant] shot him.” See N.T. Trial, 

12/1/04, at 118. Gia Calloway similarly testified that, “[Appellant] punched 

[Harris]. [Harris] fell to the ground. [Appellant] pulled his gun out with his 

right hand ... and shot [Harris] one time and [Harris] was still on the 
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ground.” Id. at 162. Finally, Tanisha Sanders stated that she saw 

“[Appellant] hit [Harris] and then [Appellant] shot [Harris].” Id. at 47. 

Because McCluskey also claimed that Appellant punched Harris, after 

which Harris fell backward and was shot by Appellant moments later, her 

testimony supported that of the Commonwealth’s other witnesses. While 

McCluskey claimed that Harris had a knife, she did not testify that Harris was 

thrusting the knife at Appellant. Instead, she stated that Harris pulled the 

knife while falling backward, suggesting that Appellant could have fled in 

complete safety, and that Appellant shot Harris while Harris was in a 

defenseless position. Therefore, McCluskey’s testimony would not have 

substantially corroborated Appellant’s trial testimony, and may have actually 

assisted the Commonwealth in disproving Appellant’s claim of self-defense 

had McCluskey been called to the stand. See Commonwealth v. Rivera, 

108 A.3d 779, 791 (Pa. 2014) (“[T]he Commonwealth satisfies its burden of 

disproving self-defense where it proves any one of the following: the 

defendant did not reasonably believe that it was necessary to kill to protect 

himself from imminent death or great bodily harm; the defendant was not 

free from fault in provoking or continuing the difficulty which resulted in the 

slaying; or, the defendant violated a duty to retreat or avoid the danger.”). 

Consequently, Appellant has not proven that the omission of McCluskey’s 

testimony caused him actual prejudice.

Next, Appellant claims that Attorney Ingram’s failure to call 

Christopher Tate to the stand constituted ineffective representation. To 
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summarize, Tate testified at the PCRA hearing that on the day of the 

shooting, he saw Appellant and Harris arguing, during which Harris pulled a 

knife and pointed it toward Appellant. N.T. PCRA Hearing, 8/14/14, at 17-

18. After seeing Harris with a knife, Tate “heard a shot go off” but did not 

see who fired the gun. Id. at 18-19.

Even assuming that Appellant’s ineffectiveness claim pertaining to Tate 

satisfies each of the five Brown factors, the record supports the PCRA 

court’s conclusion that Attorney Ingram had a reasonable basis for not 

calling Tate as a defense witness. Initially, we stress that, “[w]ith regard to 

the ... reasonable basis prong, we do not question whether there were more 

logical courses of action which counsel could have pursued; rather, we must 

examine whether counsel’s decisions had any reasonable basis.” 

Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011) (citation and 

internal quotation marks omitted). 

Here, in concluding Attorney Ingram had reasonable grounds for not 

calling Tate, the PCRA court explained:

First, [Attorney] Ingram learned that Tate allegedly 

intimidated a witness in the case, Gia Calloway. Second, there 

was no evidence admitted at trial that Tate was even involved 

himself in the sequence of events prior to and following the 

shooting. Specifically, Tate told police that he heard gunfire but 

was at Reed and Earp Streets and saw nothing.

PCO at 4. 

Again, the record supports the court’s decision. At the PCRA hearing, 

Attorney Ingram admitted that he was aware of Tate because Tate “was 
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named in the discovery from the [District Attorney’s] office.” N.T. PCRA 

Hearing, 1/16/14, at 12. Attorney Ingram explained that he did not 

interview Tate or call him to the stand because “it was alleged that he was 

tampering with [a] Commonwealth witness[,]” namely, Gia Calloway. Id. at 

16-17, 23. Additionally, counsel stated that the pretrial discovery suggested 

that Tate was not present at the scene of the shooting. Id. at 17. 

On cross-examination, the Commonwealth showed Attorney Ingram a 

“Biographical Information report” regarding Tate (hereinafter “the Report”), 

which Attorney Ingram “recall[ed] seeing with [the] discovery” prior to trial. 

Id. at 24. The Report stated that Tate:

Know [sic] [Appellant] from the neighborhood. Had saw [sic] 

him a week ago. Heard gunfire but was on Reed and Earp Street. 

Saw nothing.” 

Id. (emphasis added). Attorney Ingram was asked if the Report factored 

into his decision not to call Tate as a witness, and he replied, “Yes.” Id. As 

stated supra, the PCRA court found that the allegation that Tate tampered 

with a witness, coupled with the Report’s indication that Tate was not an 

eyewitness to the crime, demonstrated that Attorney Ingram had a 

reasonable basis for not pursuing Tate as a defense witness.

Appellant, however, disagrees. He argues that Attorney Ingram did 

not have a reasonable basis for deciding not to call Tate as a witness, 

“without first interviewing him[,]” because “counsel had no idea what Tate 

might testify to if called as a witness.” Appellant’s Brief at 19. This 

assertion is belied by the record, as counsel believed – based on the pretrial 
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discovery packet – that Tate would say he “saw nothing.” N.T. PCRA 

Hearing, 1/16/14, at 24. 

Additionally, Appellant stresses that when Tate testified at the PCRA 

hearing, he stated “that he was never accused of and/or arrested for, and in 

fact did not[,] intimidate any witness of this incident.” Id. at 20 (citing N.T. 

PCRA Hearing, 8/14/14, at 23-24). While this is an accurate account of 

Tate’s PCRA hearing testimony, whether Tate actually did intimidate Gia 

Calloway has little to do with our assessment of whether counsel acted 

reasonably in not calling Tate after hearing the allegation of this conduct. 

Appellant did not question Attorney Ingram about the specifics of the 

allegation against Tate, so as to cast doubt on the reasonableness of 

counsel’s believing that allegation without further investigation. Accordingly, 

the record supports the PCRA court’s determination that the allegation of 

witness tampering, combined with the report stating that Tate was not an 

eyewitness to the shooting, provided Attorney Ingram with reasonable 

grounds for not calling Tate to the stand. 

Appellant next challenges the PCRA court’s admission, and 

consideration of, the Report containing Tate’s statement to a detective that 

he did not see the shooting. Appellant argues that “[t]he PCRA court abused 

its discretion in admitting [the Report] ... as if it were a business record 

pursuant to Rule 803(6) of the Pennsylvania Rules of Evidence (Pa.R.E.), as 

the contents thereof, specifically the language[,] ‘Knows [Appellant] from 

the neighborhood, last saw him a week ago, heard gunshot but was on Reed 
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and Earp St., saw nothing’ is hearsay and does not meet the qualifications to 

be admitted as a business record.” Appellant’s Brief at 24 (quoting the 

Report). Appellant further maintains that because the detective who 

completed the Report was unavailable to testify at the PCRA hearing, the 

court’s “consideration of [the Report’s] contents as substantive evidence ... 

violated [his] constitutional right guaranteed to him under the United States 

and Pennsylvania Constitutions to confront and cross-examine witnesses.” 

Appellant’s Brief at 29-30.

We begin by noting:

Our standard of review relative to the admission of evidence is 

for an abuse of discretion. Commonwealth v. Feliciano, 67 

A.3d 19, 27 (Pa. Super. 2013). The admissibility of hearsay is 

addressed in Rules 801, 802, and 803 of the Pennsylvania Rules 

of Evidence. Rule 801(c) defines hearsay as “a statement ... 

offered in evidence to prove the truth of the matter asserted.” 

Pa.R.E. 801(c). Hearsay evidence is inadmissible under Rule 

802. Out of court statements are not inadmissible hearsay, 

however, if they are offered for some relevant purpose other 

than to prove the truth of the matter asserted. Commonwealth 

v. Ali, 608 Pa. 71, 126, 10 A.3d 282, 315 (2010); 

Commonwealth v. Puksar, 559 Pa. 358, 368, 740 A.2d 219, 

225 (1999).

Commonwealth v. Wantz, 84 A.3d 324, 336 (Pa. Super. 2014).

By way of background, the record reveals that the Report was utilized 

by the Commonwealth on two different occasions during the bifurcated PCRA 

proceedings. First, at the hearing on January 16, 2014, during the 

Commonwealth’s cross-examination of Attorney Ingram, it referred to the 

Report and used it to question counsel, as discussed supra. See PCRA 
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Hearing, 1/16/14, at 24-27. Then, at a hearing on August 14, 2014, the 

Commonwealth again used the Report to impeach Christopher Tate’s 

testimony that he was at the scene of the shooting and saw the victim with a 

knife. See N.T. PCRA Hearing, 8/14/14, at 40-45.

The PCRA court ruled that the Report was admissible under the 

business-records exception to the rule precluding hearsay. See PCO at 7-8; 

Pa.R.E. 803(6). We need not assess whether the PCRA court’s ruling is 

correct, as there are other grounds to reject Appellant’s claim that the court 

erred by admitting, and considering, the Report. 

First, when the Report was first introduced by the Commonwealth 

during the testimony of Attorney Ingram, Appellant did not object on the 

basis that the Report constituted hearsay; instead, he argued that the report 

“wasn’t disclosed before” and the Commonwealth had not demonstrated that 

Attorney Ingram “specifically ... saw the document before.” N.T. Trial, at 24, 

26. The court directed the Commonwealth to ask Attorney Ingram “whether 

or not this was part of the discovery package that was provided.” Id. at 27. 

Before the Commonwealth did so, the court asked Appellant’s counsel if he 

had any objection to the Commonwealth’s questioning Attorney Ingram as 

such. Id. at 27. PCRA counsel stated that he did not, and the 

Commonwealth questioned Attorney Ingram without further objection by 

Appellant’s counsel. Id. at 27-28. 

On appeal, Appellant does not challenge the court’s admission of the 

Report for the reasons he expressed at the PCRA hearing on January 16, 
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2014; therefore, we do not address whether the court’s decision in that 

regard was error. Further, because PCRA counsel did not, during the 

testimony of Attorney Ingram, object to the Commonwealth’s use of the 

Report on the basis that it constituted hearsay, he has waived any such 

objection on appeal. See Commonwealth v. Lopez, 57 A.3d 74, 81-82 

(Pa. Super. 2012) (“A party complaining, on appeal, of the admission of 

evidence in the court below will be confined to the specific objection there 

made. If counsel states the grounds for an objection, then all other 

unspecified grounds are waived and cannot be raised for the first time on 

appeal.”) (internal citations and quotation marks omitted). Therefore, the 

court did not err in permitting the Commonwealth to use the Report during 

the testimony of Attorney Ingram.4 

Additionally, even if we accepted Appellant’s argument that the Report 

constituted inadmissible hearsay when the Commonwealth utilized it during 

____________________________________________

4

In any event, we note that the Report did not constitute hearsay at this 

point in the PCRA proceedings. When the Report was used by the 

Commonwealth to question Attorney Ingram, it was not being offered to 

prove the truth of the matter asserted therein, i.e., that Tate only heard a 

gunshot but saw nothing. Instead, the Commonwealth used the Report to 

show what information Attorney Ingram had considered in deciding whether 

to call Tate to the stand at trial. Thus, the Report did not constitute 

hearsay. See Wantz, 84 A.3d at 336 (concluding that two reports, one by a 

detective and another by a doctor, admitted at a PCRA hearing did not 

constitute hearsay where they were not admitted “for the truth of the 

matters set forth therein, but rather for the purpose of establishing counsel’s 

strategic basis for not calling [a certain witness] to testify”). 
J-S10017-16

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the testimony of Tate, the court’s admission of it at that point was not 

“harmful or prejudicial” to Appellant so as to constitute reversible error. 

Lopez, 57 A.3d at 81 (“To constitute reversible error, an evidentiary ruling 

must not only be erroneous, but also harmful or prejudicial to the 

complaining party.”). Specifically, the record demonstrates that the court 

only considered the Report in the context in which it was first admitted, i.e., 

during the testimony of Attorney Ingram, to prove that Attorney Ingram had 

a reasonable basis for not pursuing Tate as a defense witness. The court did 

not consider the Report as substantive evidence that refuted Tate’s 

testimony that he witnessed the shooting and saw the victim with a knife. 

Therefore, any error in the court’s allowing the Commonwealth to use the 

Report when cross-examining Tate was not harmful or prejudicial to 

Appellant.

Finally, we reject Appellant’s claim that the admission of the report 

violated his Confrontation Clause rights. In Wantz, we addressed a similar 

claim, raised in the context of a post-conviction proceeding, stating:

The Confrontation Clause in the Sixth Amendment to the United 

States Constitution provides that “in all criminal prosecutions, 

the accused shall enjoy the right ... to be confronted with the 

witnesses against him.” U.S. CONST. amend. VI.6[.] In 

Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 

L.Ed.2d 177 (2004), the United States Supreme Court ruled that 

where the prosecution presents testimonial hearsay, the only 

indicium of reliability sufficient to satisfy the Sixth Amendment 

and permit the admission of the hearsay is “confrontation.” Id.

at 68–69, 124 S.Ct. 1354.
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According to our Supreme Court, “[a]t its most basic level, the 

Sixth Amendment's Confrontation Clause seeks to ensure that 

the trial is fair and reliable by preserving an accused's right to 

cross-examine and confront the witnesses against him.” 

Commonwealth v. Collins, 585 Pa. 45, 64, 888 A.2d 564, 575 

(2005). The focus of claims of violation of this constitutional 

right is on the fairness and reliability of the criminal defendant's 

trial. Wantz has cited to no authority holding that a 

Confrontation Clause challenge may be asserted in non-trial 

proceedings, including during PCRA evidentiary hearings. See, 

e.g., United States v. Stone, 432 F.3d 651, 654 (6th Cir.2005) 

(because Crawford focused only on testimonial evidence at 

trial, “it does not change our long-settled rule that the 

Confrontation Clause does not apply in sentencing hearings”), 

cert. denied, 549 U.S. 821, 127 S.Ct. 129, 166 L.Ed.2d 35 

(2006). To the contrary, on at least two occasions our Supreme 

Court has held that Confrontation Clause issues may not be 

asserted in collateral proceedings. See Commonwealth v. 

Collins, 585 Pa. 45, 65 n. 15, 888 A.2d 564, 576 n. 15 (2005) 

(“Crawford, however, is unavailable to claimants on collateral 

review....”); Commonwealth v. Gribble, 580 Pa. 647, 663 n. 

7, 863 A.2d 455, 464 n. 7 (2004) (“We need not concern 

ourselves with that question, as this is a collateral attack, and 

Crawford does not apply.”).

Wantz, 84 A.3d at 337 (emphasis in original). Here, as in Wantz, Appellant 

fails to cite any authority holding that the Confrontation Clause applies to 

post-conviction proceedings. Accordingly, his argument that his rights under 

that clause were violated during the PCRA hearing is meritless.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/10/2016