J-S67005-18

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANTOINE GARDINER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1494 EDA 2017

Appeal from the PCRA Order April 20, 2017

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0002773-2014

COMMONWEALTH OF PENNSYLVANIA

v.

ANTOINE GARDINER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1526 EDA 2017

Appeal from the PCRA Order April 20, 2017

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0002774-2014, 

CP-51-CR-0002780-2014, CP-51-CR-0002781-2014, 

CP-51-CR-0002782-2014, CP-51-CR-0002784-2014, 

CP-51-CR-0002785-2014, CP-51-CR-0002786-2014, 

CP-51-CR-0002787-2014, CP-51-CR-0002788-2014, 

CP-51-CR-0002790-2014, CP-51-CR-0002791-2014, 

CP-51-CR-0002802-2014, CP-51-CR-0002841-2014, 

CP-51-CR-0002842-2014, CP-51-CR-0002843-2014, 

CP-51-CR-0002844-2014, CP-51-CR-0014370-2013

BEFORE: OTT, J., NICHOLS, J., and STRASSBURGER*, J.

MEMORANDUM BY OTT, J.: FILED APRIL 15, 2019
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Antoine Gardiner appeals from the order entered April 20, 2017, in the 

Court of Common Pleas of Philadelphia County, that dismissed, without a 

hearing, his first counseled petition filed pursuant to the Post Conviction Relief 

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Gardiner seeks relief from the 

judgment of sentence to serve an aggregate term of 111⁄2 to 23 months’ 

imprisonment, to be followed by twelve years of reporting probation, imposed 

upon his convictions for eighteen counts of theft by receiving stolen property 

and seventeen counts of criminal conspiracy.1 On appeal, Gardiner claims

that trial counsel was ineffective for: (1) failing to call six fact witnesses who 

would have refuted the Commonwealth’s main witness’s testimony that he did 

not lease commercial property from Gardiner; and (2) failing to call Gardiner’s 

wife to testify to his daily schedule. See Gardiner’s Brief at 4-5. Based upon 

the following, we affirm.

The PCRA court described the facts underlying Gardiner’s convictions as 

follows:

At trial, the Commonwealth’s primary witness was Joseph Murray, 

a heroin addict who schemed with [Gardiner] to steal vans owned 

by construction contractors and other business owners for their 

contents, namely tools and other items used by the vans’ owners 

in their respective businesses. The vans were stolen by Murray 

between May and October, 2013. Murray acted alone except for 

two occasions when [Gardiner] accompanied him. After stealing 

the vans, Murray drove them to 5049-5075 Lancaster Avenue [the 

Property] in West Philadelphia, a 50,000 square foot building 

owned by [Gardiner], where [Gardiner] and Murray would remove 

any equipment and tools that were in the vans and store it in the 

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1 18 Pa.C.S.A. §§ 3925 and 903, respectively. 
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[Property]. Once the vans were unloaded, Murray would abandon 

the vans in West Philadelphia. Murray testified that [Gardiner] 

paid him for every van he stole, along with its contents. Following 

his arrest, Murray signed a [m]emorandum of [a]greement with 

the Commonwealth and agreed to testify against [Gardiner].

Following the repeated thefts of the vans, police determined that 

some vans were equipped with GPS enabling the police to track 

them. Investigation resulted in police focusing on the [P]roperty 

after some vans were tracked to that location. Police installed 

pole cameras to record the area[,] which captured vans being 

driven to and then parked inside [the Property] and items being 

removed from them. On October 4, 2013, in the early morning 

hours, the cameras recorded a van driving up to [the Property] 

and parking outside [it]. Thirty-five minutes later, the van was 

driven inside [it]. At 6:30 p.m., [Gardiner] entered the parking 

lot and was observed backing his vehicle up to a door at which 

time he appeared to be loading items into the vehicle’s trunk.

On October 7, 2013, two contractors’ vans were stolen and then 

driven to the above location. One person was observed on video 

unloading items from the vans into the building. Later that day, 

police, armed with a search warrant for the premises, went to [the 

Property]. At about 6:00 p.m., police observed [Gardiner] exit 

the [P]roperty and lock the door behind him. [Gardiner] entered 

his vehicle and drove away. Police stopped the vehicle and 

[Gardiner] asked, “What’s this about?” When police told him that 

the stop concerned [the Property], [Gardiner] stated, “I don’t 

have anything to do with it. I don’t have keys to the place.” 

Following this exchange, police drove [Gardiner] back to the 

[P]roperty and executed the search warrant using keys in 

[Gardiner’s] possession to open a door to the [P]roperty and its 

gate. A search of the [P]roperty resulted in the seizure of four 

truckloads of tools and other equipment many of which were 

identified as having come from the stolen vans.

PCRA Court Opinion, 1/31/2018, at 2-4 (footnote and record citations 

omitted).

A bench trial took place on February 26-27, 2015, following which the 

trial judge convicted Gardiner of the above-delineated offenses. On July 10, 
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2015, the trial court imposed the afore-mentioned sentence. Gardiner did not 

file a direct appeal. On June 2, 2016, Gardiner timely filed a counseled PCRA 

petition. On March 6, 2017, the court held oral argument on the PCRA 

petition. Thereafter, on March 17, 2017, the PCRA court issued a Pa.R.Crim.P. 

907 notice of intent to dismiss. Gardiner did not file a response to the Rule 

907 notice. On April 20, 2017, the PCRA Court dismissed the petition. This 

timely appeal followed.2

The principles that guide our review are well settled.

We review the denial of PCRA relief to decide whether the PCRA 

court’s factual determinations are supported by the record and are 

free of legal error. When supported by the record, the PCRA 

court’s credibility determinations are binding on this Court, but we 

apply a de novo standard of review to the PCRA court’s legal 

conclusions. We must review the PCRA court’s findings and the 

evidence of record in a light most favorable to the Commonwealth 

as the winner at the trial level.

* * * *

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2 On April 27, 2017, the PCRA court ordered Gardiner to file a Pa.R.A.P. 

1925(b) statement of errors complained of on appeal. Gardiner filed a concise 

statement on May 15, 2017; the court issued its opinion on January 31, 2018. 

Before we address the substance of this appeal, we first note that a 

single order disposed of all the cases listed in the caption. Gardiner filed a 

single notice of appeal from the order, despite the fact the order disposed of 

separate matters. This was a common practice. However, our Supreme Court 

has recently determined that in instances, such as is currently before us, 

where a single order disposes of multiple cases, the appellant must file a notice 

of appeal for each case. If the appellant files a single notice of appeal, the 

appeal is to be quashed. See Commonwealth v. Walker, 185 A.3d 969 (Pa. 

2018). The Walker decision is to be applied prospectively from the date of 

the opinion. Id. at 13. Because this appeal was filed prior to the Walker

decision, we may address the substance of the appeal.
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With respect to claims of ineffective assistance of counsel, counsel 

is presumed to be effective, and the petitioner bears the burden 

of proving to the contrary. To prevail, the petitioner must plead 

and prove, by a preponderance of the evidence, the following 

three elements: (1) the underlying claim has arguable merit; (2) 

counsel had no reasonable basis for his or her action or inaction; 

and (3) the petitioner suffered prejudice as a result of counsel’s 

action or inaction. With regard to the second prong (reasonable 

basis), we do not question whether there were other more logical 

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

must examine whether counsel’s decisions had any reasonable 

basis. We will hold that counsel’s strategy lacked a reasonable 

basis only if the petitioner proves that a foregone alternative 

offered a potential for success substantially greater than the 

course actually pursued. Our review of counsel’s performance 

must be highly deferential. To establish the third element 

(prejudice), the petitioner must show that there is a reasonable 

probability that the outcome of the proceedings would have been 

different but for counsel’s action or inaction.

Because a petitioner’s failure to satisfy any of the abovementioned elements is dispositive of the entire claim, [a] court is 

not required to analyze the elements of an ineffectiveness claim 

in any particular order of priority; instead, if a claim fails under 

any necessary element of the ineffectiveness test, the court may 

proceed to that element first.

* * * *

To prove that trial counsel provided ineffective assistance for 

failing to call a witness, a petitioner must demonstrate:

(1) the witness existed; (2) the witness was available 

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

should have known of, the existence of the witness; 

(4) the witness was willing to testify for the defense; 

and (5) the absence of the testimony of the witness 

was so prejudicial as to have denied the defendant a 

fair trial.

* * * *
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With respect to [a petitioner’s] claim that he should have been 

provided a full evidentiary hearing on all of his PCRA claims, the 

law in this area is clear:

[T]he PCRA court has the 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 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 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. 

We stress that an evidentiary hearing is not meant to 

function as a fishing expedition for any possible evidence 

that may support some speculative claim of 

ineffectiveness.

Commonwealth v. Brown, 196 A.3d 130, 150-151, 167, 192-193 (Pa. 

2018) (citations, internal citations, and quotation marks omitted, emphasis 

added).

In both his issues, Gardiner claims that trial counsel’s representation 

was deficient because he did not call certain witnesses. However, Gardiner 

waived these claims. 

In his PCRA petition, Gardiner contended that counsel was ineffective 

for failing to call six witnesses who would have testified that Gardiner was the 

owner of the Property and that he leased out portions of the premises. See 

PCRA Petition, 6/02/2016, at 2-5. Gardiner contended that this testimony 

was necessary at trial to refute the Commonwealth’s contention that he had 

no lawful interest in the Property and did not operate a real estate company 

that leased the premises. Id. At oral argument, PCRA counsel reiterated this 

claim, stating that the “crux” of the PCRA petition was the claim that counsel 
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was ineffective for not refuting the Commonwealth’s assertion that someone 

other than Gardiner owned the Property. N.T. PCRA Argument, 3/06/2017, 

at 6-8. Specifically, counsel stated:

During the course of the trial, especially when Mr. Gardiner 

testified [the Commonwealth] confronted him on whether or not 

he was the lawful owner. They also confronted him on crossexamination as to whether or not he had any proof that he was 

the owner and lessor, such as bank records, ledger records[.]

* * * *

It’s whether or not he was not only the lawful owner — they were 

suggesting he was not the lawful owner. More importantly, there 

was a management company that ran the business. There was 

questions whether there was a proper lease between the people 

that he was identifying or not and whether or not there were 

property receipts for rentals all suggesting that he’s lying about 

his interest in the business.[3]

Id. at 6-7. 

In his Rule 1925(b) statement, Gardiner reiterated these claims but 

included, for the first time, a claim that three of the six witnesses were 

necessary to refute Murray’s trial testimony that he never entered into a 

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3 Gardiner’s argument is a patent misreading of the trial transcript. At no 

point did the Commonwealth dispute that Gardiner owned the building, leased 

portions of it to various tenants, and employed a management company. The 

Commonwealth also did not dispute Gardiner’s claim that Murray rented an 

apartment from him, although it did question the existence of a written lease. 

Rather, the Commonwealth disputed Gardiner’s claim that Murray leased 

commercial space from him and that Murray paid Gardiner rent for either the 

apartment or the commercial space. The entire portion of the 

Commonwealth’s cross-examination of Gardiner referenced by counsel at oral 

argument concerned whether Gardiner had any documentation to support his 

contention regarding the leases with and rent payments from Murray. See 

N.T. Trial, 2/27/2015, at 37-49.
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commercial lease with Gardiner. Statement of [Errors] Complained of on 

Appeal, 5/15/2017, at 2-3. 

With respect to Gardiner’s second claim, in both his PCRA petition and 

his Rule 1925(b) statement, he alleged that trial counsel was ineffective for 

failing to call his wife, Shirley Gardiner, as an alibi witness who would have 

testified that, “[Gardiner] was with her during all times relevant to said 

charges.” PCRA Petition, 6/02/2016, at 5; see also Statement of [Errors] 

Complained of on Appeal, 5/15/2017, at 3. 

However, on appeal, Gardiner has changed his legal theories, he now 

claims that trial counsel should have called the six potential witnesses to refute 

Murray’s testimony that he did not have a commercial lease with Gardiner and 

that there was “not an offset of rent in return for the procurement of stolen 

items given to [Gardiner].”4 Gardiner’s Brief, at 4. Moreover, he no longer 

claims that his wife was an alibi witness but rather that she would testify about 

Gardiner’s general daily schedule and his adherence to it, presumably in an 

attempt to demonstrate that he was at home during the hours the thefts took 

place. See id. at 4-5.

It is long settled that PCRA issues not raised in a PCRA petition or 

amended PCRA petition are waived on appeal. Commonwealth v. Lauro, 

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4 Despite alleging in his statement of the questions involved that all six 

witnesses would testify about the existence of a commercial lease between 

Gardiner and Murray, in the body of his brief, Gardiner admits that only two 

of the six proposed witnesses had any knowledge of his dealings with Murray. 

See Gardiner’s Brief, at 13-14.
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819 A.2d 100, 103-104 (Pa. Super. 2003), appeal denied, 830 A.2d 975 (Pa. 

2003) (waiving five issues not in original or amended PCRA petition). Further, 

an appellant cannot raise matters for the first time in a Rule 1925(b) 

statement. Commonwealth v. Coleman, 19 A.3d 1111, 1118 (Pa. Super. 

2011) (issues raised for first time in Rule 1925(b) statement are waived). 

Also, as amended in 2007, Rule 1925 provides that issues that are not 

included in the Rule 1925(b) statement or raised in accordance with Rule 

1925(b)(4) are waived. Pa.R.A.P. 1925(b)(4)(vii); see also Commonwealth 

v. Lord, 719 A.2d 306, 308 (Pa. 1998), superseded by rule on other grounds 

as stated in Commonwealth v. Burton, 973 A.2d 428, 430 (Pa. Super. 

2009). Lastly, an appellant cannot raise a subject for the first time on appeal. 

Commonwealth v. Hanford, 937 A.2d 1094, 1098 n.3 (Pa. Super. 2007), 

appeal denied, 956 A.2d 432 (Pa. 2008) (new legal theories cannot be raised 

for first time on appeal); Pa.R.A.P. 302(a). 

Here, Gardiner did not argue in his PCRA petition or at oral argument 

that trial counsel was ineffective for failing to call the six proposed witnesses 

to refute Murray’s testimony regarding the existence of a commercial lease. 

Instead, he raised this claim for the first time in his Rule 1925(b) statement,

then further modified it on appeal. In addition, on appeal, he dropped his 

claim that Shirley Gardiner was an alibi witness, instead, arguing for the first 

time that she would testify regarding his daily schedule. Thus, he waived his 

issues on appeal. See Lord, supra at 308; Coleman, supra at 1118;

Hanford, supra at 1098 n.3; Lauro, supra at 103-104.
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Moreover, Gardiner’s claims are meritless. First, to the extent that he 

continues to argue that four of his six proposed fact witnesses are necessary 

to refute the Commonwealth’s contention that he did not own the Property,

the record belies his claims. As the PCRA court aptly stated,

[Gardiner’s] petition fails to set forth where in the record the 

Commonwealth argued or presented evidence that [he] was guilty 

simply because he owned the building. [Gardiner] also fails to cite 

where in the record that [the trial court’s] verdict was predicated 

on the defense’s failure to prove that he owned the building where 

the stolen goods were stored.

* * * *

[Gardiner’s] PCRA petition fails to establish that trial counsel’s 

ineffectiveness with regard to this issue prejudiced him such that 

the outcome would have been different had counsel investigated 

and called the witnesses to prove that [Gardiner] owned the 

building. [Gardiner] implies that he simply owned the building 

and divested himself of any occupancy because he entered into a 

series of lease agreements with various tenants. In so arguing, 

[Gardiner] completely ignores the mountain of credible evidence 

presented against him showing his actual knowledge of and 

participation in the conspiracy to steal. [Gardiner] himself 

testified that he owned the building, testimony which [the trial 

court], sitting as fact-finder believed.[5] Thus, the evidence he 

now claims counsel was ineffective for not introducing was 

cumulative of evidence already presented during trial. Trial 

counsel cannot be deemed ineffective for failing to present 

cumulative testimony. See Commonwealth v. Milligan, 693 

A.2d 1313, 1319 (Pa. Super. 1997) (failure to call witnesses was 

not ineffective assistance of counsel where the witness’ testimony 

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5 We note that Commonwealth witness Detective John Logan testified that 

Gardiner owned the Property. N.T. Trial, 2/26/2015, at 140. Defense witness 

Bernard Williams testified both that Gardiner hired him to work at the Property 

and that he was aware that Murray leased space at the Property. N.T. Trial, 

2/27/2015, at 5-8. Defense witness David Denenberg, Esquire, testified that 

he had a written lease with Gardiner to rent space at the Property. Id. at 14-

15. 
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would have been cumulative evidence presented) (citations 

omitted).

PCRA Court Opinion, 1/31/2018, at 8-9. Thus, we agree with the PCRA court 

that this claim lacks merit.

Gardiner claims that the remaining two of the proposed fact witnesses

would have testified and presented documentary evidence to refute Murray’s 

claim that he did not have a commercial lease with him and did not pay him 

rent. Gardiner did not attach any affidavits or other supporting documentation 

from the witnesses to his PCRA petition, which demonstrated their willingness 

to testify for the defense. Further, he did not provide any specific information 

regarding the details of their proposed testimony. On appeal, Gardiner never 

states that trial counsel was aware of the existence of these witnesses. Lastly, 

he never explains how the testimony of these witnesses would have changed 

the result in this matter. While the purported testimony of these witnesses 

might have refuted Murray’s claim regarding the commercial lease, the issue 

of said lease was, at best, peripheral to the issue of Gardiner’s involvement in 

the conspiracy and, as the PCRA court stated above, he ignores all the direct 

evidence produced by the Commonwealth showing his involvement in the 

conspiracy. Thus, Gardiner fails to set forth the ineffectiveness analysis 

required by Strickland v. Washington, 466 U.S. 668, 687 (1984). Because 

he did not establish any of the three prongs, we must deem counsel’s 

assistance constitutionally effective. See Commonwealth v. Rolan, 964 

A.2d 398, 406 (Pa. Super. 2008) (holding where appellant fails to address 
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three prongs of ineffectiveness test, he does not meet his burden of proving 

ineffective assistance of counsel, and counsel is deemed constitutionally 

effective). Thus, even if Gardiner had not waived his first claim, we would 

find it meritless.

Gardiner’s second claim regarding the proposed testimony of his wife 

suffers from the same fatal flaws. In addressing the claim raised below, that 

his wife could provide an alibi for the crime, the PCRA court, who sat as the 

fact-finder at trial, stated:

. . . his assertion that Ms. Gardiner [was] with him at all times 

relevant to the prosecution is simply ludicrous and belied by the 

Commonwealth’s uncontradicted evidence as well as [Gardiner’s] 

own testimony. First, the crimes which [Gardiner] was charged 

occurred over a five month period. Certainly any claims that 

[Gardiner] was with his wife during the entire period of time at all 

times relevant to the crimes is simply not credible. . . . 

PCRA Court Opinion, 1/31/2018, at 10 (emphasis in original). 

Here, as discussed above, Gardiner now claims that his wife would 

testify about his daily schedule, stating that during the entire five-month 

period he left for work at approximately 6:30 a.m., arrived home at 

approximately 7:00 p.m., and never deviated from this schedule. Gardiner 

fails to explain how this testimony is any less ludicrous than a claim that she 

was with him at all times during a five-month period and why the trial court 

would have credited it, given the above discussion and given the videotape 

evidence by the Commonwealth showing Gardiner participating in the crime. 

See N.T. Trial, 2/26/2015, at 113-117; 2/27/2015, at 35-36. Again, we find 
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that, because Gardiner has failed to set forth the analysis required by 

Strickland, even if not waived, his second claim is meritless. See 

Strickland, supra at 687; Rolan, supra at 406.

As Gardiner’s claims are both waived and meritless, we affirm the denial 

of his PCRA petition without an evidentiary hearing.

Order affirmed.

Judge Nichols joins this memorandum.

Judge Strassburger files a concurring memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/15/19