J-S11028-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

IRVIN HARPER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1331 EDA 2022

Appeal from the PCRA Order Entered April 29, 2022

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

No(s): CP-51-CR-0011481-2016

COMMONWEALTH OF PENNSYLVANIA

v.

IRVIN HARPER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1332 EDA 2022

Appeal from the PCRA Order Entered April 29, 2022

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

No(s): CP-51-CR-0011482-2016

BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 03, 2023

Irvin Harper appeals from the order denying his Post Conviction Relief 

Act (“PCRA”) petition. See 42 Pa.C.S.A. §§ 9541-9546. Harper maintains that 

the court erred in denying his PCRA petition because he raised meritorious 

claims of ineffectiveness of counsel. He also contends the court erred by failing 

to hold an evidentiary hearing on his petition. We affirm.

The PCRA court summarized the facts as follows:
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The testimony presented at trial was that in December of 2015,

[F.V.] was living at the Covenant House, a homeless shelter in the 

Germantown section of Philadelphia. (N.T. 6-28-2018, pp. 42-45). 

The shelter required the residents to obtain employment or be 

enrolled in school, or they would be asked to leave. [F.V.] was 

walking in a park near the shelter when she was approached by 

[Harper] who asked her if she needed a job, offering her 

employment hairdressing, washing hair and cleaning. (N.T. 6-28-

2018, pp. 46-48). She accepted the offer and accompanied Harper 

to his house, where [Harper] said he had to retrieve something.

(N.T. 6-28-2018, pp. 47-49). [F.V.] related that once inside, 

[Harper] brandished a gun from the inside of his jacket and told 

her to remove her clothes and to do what he told her. (N.T. 6-28-

2018, pp. 49-55). [F.V.] further testified that [Harper] told her to 

perform oral sex upon him and then engage in sexual intercourse 

with Harper ejaculating on her chest, and that she was too scared 

to say anything, just complying to get it all over with. (N.T. 6-28-

2018, pp. 49-55). Harper had told the [F.V.] that his nickname 

was “Gotti.” (N.T. 6-28-2018, pp. 63, 65). [F.V.] returned to 

Covenant House but admitted that she had exchanged phone 

numbers with [Harper] and that the incident was repeated later 

because she was still scared of him and somehow thought he 

would still get her a job. (N.T. 6-28-2018, pp. 57-60). [F.V.]

further testified that sometime later, she was outside the 

homeless shelter when [Harper] approached, telling her he 

wanted her again. [F.V.] told him no and ran back inside the 

shelter. Obviously upset and shaking, her roommate pressed her 

as to what was wrong and she told her roommate everything, 

eventually being moved from the shelter and making a statement 

to the police. (N.T. 6-28-2018, pp. 60-65). In the statement, 

[F.V.] admitted to having previously be[en] involved in

prostitution a few years earlier when living in Egypt. (N.T. 6-28-

2018, pp. 64-66).

[J.T.] testified that when she was twenty-one years old[,] she

resided at the Covenant House around October 2016 for 

approximately three months. (N.T. 6-28-2018, pp. 96-98).

[Harper] approached her, in a group of people, and offered her 

money to help him with a drug run. (N.T. 6-28-2018, pp. 98-100). 

[J.T] checked with [“]Robin[”], another resident of the Covenant 

House, and after receiving assurances that he was alright, [J.T.]

left with [Harper]. (N.T. 6-28-2018, pp. 97-103). Harper left her 

in the park for a short time and then reappeared with a car. They 

rode around for a while, evidently completing his drug run, ending
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back at his house with hoagies. (N.T. 6-28-2018, pp. 97-101). Mr. 

Harper had informed [J.T.] as well that his nickname was “Gotti.”

(N.T. 6-28-2018, pp. 97-114). [J.T.] testified that while upstairs 

[Harper] told her she needed to keep her word, that he had given 

her twenty-five dollars for a drug run, bought her a hoagie and a 

drink and then he stripped down to his underwear. [J.T.] stated 

that she repeatedly told him she did not want to do this, but felt 

pressured. [J.T.] stated that [Harper] forced her to perform oral 

sex on him while she was sitting on the bed. (N.T. 6-28-2018, pp. 

130-133). She finally removed her clothes and [Harper] had 

sexual intercourse with her. (N.T. 6-28-2018, pp. 114-119). 

Harper put his telephone number in [J.T.]’s cellphone and dropped 

her off a short distance from the Covenant House. Later that day, 

[J.T.] told another resident of what happened, then an

administrator, and subsequently the police. (N.T. 6 28-2018, pp. 

119-126).

[A.C.] testified that she was a resident of the Covenant House in 

the spring of 2015 when [Harper] approached her and asked if 

she needed a job. [A.C.] responded no and walked away from Mr. 

Harper. (N.T. 6-28-2018, pp. 189-194). This witness further 

testified that she was walking with her roommate, [F.V.], when 

“Gotti” was walking by the door of the Covenant House and said 

something to [F.V.] which made her extremely upset and she then 

ran away. When pressed, [F.V.] told her that “Gotti” had offered 

her a job and that when they went back to his place to fill out an 

online application on his computer that he pulled out a gun and 

told her to go upstairs and get undressed. (N.T. 6-28-2018, pp. 

190-196).

Toni Seibert is a registered nurse who has worked for the 

Philadelphia Sexual Assault Response Center for the past twenty 

years and testified that on October 17, 2016, she examined [J.T.]

and as part of that exam she took a report on what [J.T] said 

happened with [Harper]. (N.T. 6-29-2018, pp. 54-72). Aimee 

Della Porta testified that she was a social worker at the Covenant 

House since March of 2015, and that she spoke with both [F.V.]

and [J.T.] as to the allegations concerning [Harper]. (N.T. 7-2-

2018, pp. 6-12).

Detective Daniel O’Malley of the Special Victims Unit of the 

Philadelphia Police Department testified that he was assigned 

detective of [Harper’s] cases, that he reviewed the reports as to 

both victims, including photo arrays and acknowledgments that 

626 Federal Street was the place of both occurrences and that he 
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applied for the search warrants in these cases as well as assisted 

in the execution of the warrants. (N.T. 7-2-2018, pp. 37-92). 

Detective O’Malley testified that [Harper] and others were present 

when the warrants were executed, [and the police recovered] the 

blue steel handgun with a silver barrel and trigger loaded with 

nine live rounds recovered from a piece of Tupperware from the

kitchen in the property; a large amount of narcotics on the kitchen 

table with packaging and scales, as well as in a bowl in the kitchen 

cabinet; and money that [Harper] attempted to hand to the 

landlord when the police entered the premises. (N.T. 7-2-2018, 

pp. 60-68).

Officer Kevin Key[s] testified that he is employed by the 

Philadelphia Police Department in the Narcotics Field Unit and is a 

stipulated expert in the field of narcotics. Officer Key[s] said he 

reviewed the reports concerning the confiscated 134 grams of 

cocaine, two baggies of heroin weighing 20.118 grams, grinders, 

a scale and packaging, and came to the conclusion that the drugs

were possessed with the intent to deliver. (N.T. 6-29-2018, pp. 

35-45).

PCRA Court Opinion, filed July 12, 2022, at 4-8.

A jury found Harper guilty in July 2018 of possession with intent to 

deliver and possession of a firearm without a license. However, it acquitted 

him of rape by forcible compulsion, involuntary deviant sexual intercourse, 

sexual assault, and kidnapping. Harper thereafter pled guilty to possession of 

a firearm prohibited. He was sentenced to an aggregate term of 10 to 20

years’ incarceration followed by seven years of probation. Harper filed a postsentence motion, which was denied. Harper appealed and we affirmed the 

judgment of sentence. Commonwealth v. Harper, No. 3468 EDA 2018, 

2020 WL 5981672, at *1 (Pa.Super. 2020) (unpublished mem.).

Harper filed the instant, timely PCRA petition, his first, in February 2021. 

The court appointed counsel who filed an amended petition. The PCRA court 
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issued a Rule 907 notice of intent to dismiss the petition without a hearing.

See Pa.R.Crim.P. 907. The court denied the petition on April 29, 2022. This 

timely appeal followed.

Harper raises the following issues:

1. Whether the court erred in not granting relief on the PCRA 

petition alleging counsel was ineffective.

2. Whether the court erred in denying [Harper’s] PCRA petition 

without an evidentiary hearing on the issues raised in the 

amended PCRA regarding trial counsel’s ineffectiveness and on 

newly discovered evidence.

Harper’s Br. at 7. 

On appeal from the denial or grant of relief under the PCRA, our review 

is limited to determining “whether the PCRA court’s ruling is supported by the 

record and free of legal error.” Commonwealth v. Presley, 193 A.3d 436, 

442 (Pa.Super. 2018) (citation omitted).

Within his first issue, Harper raises several ineffectiveness claims, which 

we address separately below. “[C]ounsel is presumed to be effective and the 

burden of demonstrating ineffectiveness rests on [the] appellant.” 

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010). To obtain 

relief based on a claim of ineffectiveness, a petitioner must establish: “(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. Spotz, 84 A.3d 294, 311 (Pa. 2014). Prejudice in 

this context means that, “absent counsel’s conduct, there is a reasonable 
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probability the outcome of the proceedings would have been different.” 

Commonwealth v. Velazquez, 216 A.3d 1146, 1149 (Pa.Super. 2019) 

(citation omitted). A failure to meet any of these prongs bars a petitioner from 

obtaining relief. Commonwealth v. Sneed, 45 A.3d 1096, 1106 (Pa. 2012).

Further, “[t]rial counsel cannot be held to be ineffective for failing to take futile 

actions or to raise a meritless claim.” Commonwealth v. Howard, 645 A.2d 

1300, 1304 (Pa. 1994).

Failure to File a Motion to Suppress

Harper first argues that trial counsel was ineffective for failing to file a 

motion to suppress the evidence of the narcotics and firearm found at 626 

Federal Street. Harper’s Br. at 15. He maintains he “sought to attack the 

probable cause underlying the search warrants that led to his arrest, as well 

as compel the officers who discovered incriminating evidence at 626 Federal 

Street to appear in court.” Id. Harper concludes that counsel was ineffective

for failing to file a motion compelling those officers to testify as to their search. 

Id. at 16.

Where a petitioner alleges that counsel ineffectively failed to file a 

suppression motion, “the inquiry is whether the failure to file the motion is 

itself objectively unreasonable, which requires a showing that the motion 

would be meritorious.” Commonwealth v. Johnson, 179 A.3d 1153, 1160 

(Pa.Super. 2018). “Where the challenge is to a failure to move for suppression 

of evidence, the defendant must establish that there was no reasonable basis 

for not pursuing the suppression claim and that if the evidence had been 
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suppressed, there is a reasonable probability the verdict would have been 

more favorable.” Commonwealth v. Melson, 556 A.2d 836, 839 (Pa.Super. 

1989).

Here, on direct appeal, this Court found that Harper himself declined to 

litigate a motion to suppress. Thus, we found he was precluded from claiming 

that a motion to suppress should have been filed. See Harper, 2020 WL 

5981672, at *3 (citing Trial Court Opinion, dated 11/4/19, at 11-12). We also 

noted that trial counsel advised Harper that he could not, in good faith, file a 

“four corners” suppression motion because it was frivolous. Id.

Harper fails to explain how the absence of the other officers’ testimony

at trial prejudiced him or that anything was improper with the search at 626 

Federal Street. Accordingly, Harper has failed to meet his burden and his claim 

of ineffectiveness fails. See Commonwealth v. Watley, 153 A.3d 1034, 

1044 (Pa.Super. 2016) (stating counsel will not be found ineffective for failing 

to file a motion to suppress if the grounds asserted for that motion lack merit).

Failure to File Request for Franks Hearing

Harper next asserts that counsel should have filed a motion for a Franks

hearing. See Franks v. Delaware, 438 U.S. 154, 155-56 (1978) (holding a 

defendant may request a hearing to attack the validity of a warrant on the 

basis that the affiant knowingly and intentionally, or with reckless disregard 

for the truth, included a false statement in the affidavit). He contends that 

there was “ample confusion about [his] residence and the location of the 

alleged underlying sexual assaults at trial[,]” and that “Detective O’Malley put 
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no less than four addresses on [Harper’s] warrants.” Harper’s Br. at 16. Harper 

claims that Detective O’Malley “had a reckless disregard for the truth” when 

he “was fixated on obtaining a warrant to 626 Federal Street.” Id. at 17.

Harper’s claim is without merit. Any alleged “confusion” about Harper’s 

residence does not equate to a reckless disregard for the truth. Detective 

O’Malley testified at trial that he obtained multiple addresses for Harper by 

conducting numerous computer searches, including searches for “car stops 

and ped investigations.” N.T., 7/2/18, at 48-49. He also conducted a Bureau

of Motor Vehicles check on Harper and found that his driver’s license was 

registered to 626 Federal Street in Philadelphia. Id. at 49. Further, one of the 

victims identified 626 Federal Street as the location where Harper raped her. 

Id. at 50-52. Harper has failed to make a preliminary showing that any false 

statement knowingly and intentionally, or with reckless disregard for the truth, 

was in the warrant affidavit, such that a hearing would be required. See 

Franks, 438 U.S. at 155-56. Therefore, counsel was not ineffective in failing 

to request a Franks hearing. 

Failure to File a Motion to Quash Indictment

Harper maintains that counsel was ineffective for failing to file a timely 

motion to quash his grand jury indictment. Harper’s Br. at 17. He argues that 

counsel should have moved to quash the indictment and requested a 

preliminary hearing instead. Id. at 17-18. 

Harper is not entitled to relief because he previously litigated this issue 

on direct appeal. See 42 Pa.C.S.A. § 9543(a)(3) (stating to be eligible for 
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relief, a petitioner must show “[t]hat the allegation of error has not been 

previously litigated or waived”). On direct appeal, this Court affirmed the trial 

court’s finding that since there is no constitutional right to a preliminary 

hearing by a defendant in a criminal proceeding, Harper was not denied a 

constitutional right by proceeding by grand jury instead of by preliminary 

hearing. See Harper, 2020 WL 5981672, at *3 (citing Trial Ct. Op. at 8-10). 

Further, Harper has not identified any basis as to why a preliminary 

hearing would have been more favorable to him than a grand jury indictment.

Counsel was not ineffective for failing to raise this meritless claim.

Failure to Investigate in Preparation for Trial

Harper claims that trial counsel failed to adequately investigate in 

preparation for trial. Harper’s Br. at 18. Harper’s argument on this issue, in 

its entirety, is as follows:

[Harper] claims that the statements of Robin Holmes, Cara 

Mastro, and [F.V.] taken by Detective O’Malley could have 

been used by trial counsel had he properly investigated. 

[Harper] claims that the statements of [J.T.] and Aimee 

Della Porta taken by Officer Cook would also have been 

useful to [his] defense. Additionally, [Harper] asserts that 

[J.T.’s] statement to Nurse Toni Seibert would have 

provided exculpatory information. [Harper] insists that the 

foregoing statements would have provided a basis for

challenging the affidavits used to obtain the warrants, and 

ultimately [would have] led to an outcome favorable to

[Harper].

Id.

Harper’s claim is vague, conclusory, and undeveloped. He fails to 

articulate what the alleged statements were and how they would have aided 
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in his defense. “Boilerplate allegations have never been sufficient to discharge 

th[e] affirmative burden to rebut the presumption of effectiveness” of counsel.

Commonwealth v. Simmons, 804 A.2d 625, 639 (Pa. 2001). This claim 

fails.

Failure to Call Officers Who First Discovered Evidence

Harper argues that trial counsel was ineffective for failing to call the 

officers who first discovered the narcotics and firearm at 626 Federal Street

during the execution of the warrant. Harper’s Br. at 19. He contends that these 

officers were present at the time of his arrest and were known to trial counsel.

Id. He argues that “counsel was in the unique position to call these officers to 

testify and failed to do so.” Id.

Again, Harper has not explained how any additional testimony from 

these officers would have supported or aided in his case. The court did not err 

in rejecting this meritless claim. 

Brady Issue

Harper next argues that the Commonwealth committed a Brady1

violation when it denied him access to allegedly exculpatory police reports. 

Id. Specifically, he claims that he was denied access to Report No. DC-2016-

25-8773 because he was indicted by a grand jury. Id. Harper argues that had 

“this information been disclosed to him, he would have been able to utilize the 

exculpatory evidence contained therein to alter the outcome of trial.” Id.

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1 Brady v. Maryland, 373 U.S. 83 (1963).
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Harper fails to specify the allegedly exculpatory evidence contained in 

the police report or how access to this information would have altered the 

outcome of his trial. Moreover, the Commonwealth provided Harper with all 

required discovery in July 2017, almost one year prior to trial. See Docket

Entry, dated 7/24/17. Harper’s Brady claim is without merit.

Failure to Call Witnesses

Harper alleges that trial counsel failed to investigate and call to testify 

two witnesses, Janet Mancuso and Turquoise Claxton. Harper’s Br. at 21. 

Harper claims that Mancuso was the landlord at 626 Federal Street and “could 

have testified as to whether [Harper] actually resided at the location at which 

the narcotics and firearm were found.” Id. He contends that Claxton, his 

girlfriend, resided at 626 Federal Street and “may have testified that the 

apartment was hers, not [Harper’s], contradicting the Commonwealth’s claim 

and theory linking [Harper] to the firearm and narcotics.” Id. Harper 

maintains that these two witnesses would have disputed the Commonwealth’s 

claim that he resided at 626 Federal Street. Id. at 22. He concludes that 

“[f]ailure to investigate and call these witnesses was prejudicial because the 

only thing linking [him] to the firearms and narcotics was his constructive 

possession of them by allegedly residing at the location in which they were 

found.” Id.

To establish that counsel was ineffective for failing to call a potential 

witness, the PCRA petitioner must demonstrate:
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(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.

Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa. 2009) (quoting 

Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007)). “The 

failure to call a possible witness will not be equated with a conclusion of 

ineffectiveness, absent some positive demonstration that the testimony 

would have been helpful to the defense.” Commonwealth v. Jones, 652 

A.2d 386, 389 (Pa.Super. 1995) (quoting Commonwealth v. Poindexter, 

646 A.2d 1211, 1217 (Pa.Super. 1994)) (emphasis in Jones). Further, “[a] 

failure to call a witness is not per se ineffective assistance of counsel for such 

decision usually involves a matter of trial strategy.” Commonwealth v. 

Auker, 681 A.2d 1305, 1319 (Pa. 1996); see also Poindexter, 646 A.2d at 

1216 (stating that “[t]he decision whether to call a witness generally involves 

a matter of trial strategy”).

Harper has provided nothing to show that these witnesses were 

available and willing to testify on his behalf. He did not produce a signed 

certification, affidavit, or otherwise, from either witness. See 42 Pa.C.S.A. § 

9545(d)(1)(i) (stating “[w]here a petitioner requests an evidentiary hearing, 

the petition shall include a certification signed by each intended witness 

stating the witness’s name, address, date of birth and substance of testimony 

and shall include any documents material to that witness’s testimony”). Since 
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counsel is presumed to be effective, we will not deem counsel ineffective for 

failing to call witnesses based solely on Harper’s unsubstantiated allegations 

regarding the witnesses’ existence and willingness to testify on his behalf. See 

Commonwealth v. Lopez, 739 A.2d 485, 496 (Pa. 1999). Harper is therefore 

not entitled to relief on this claim.

Failure to File Post-Sentence Motion Challenging Weight of Evidence

Harper next argues that trial counsel was ineffective for failing to file a 

post-sentence motion challenging the weight of the evidence. Harper’s Br. at 

22. He contends that counsel should have filed such a motion because the 

evidence that his conviction rested upon was “tenuous at best.” Id. at 23. He 

points out that he was not seen in possession of the narcotics or firearm and 

there was confusion about whether he resided at 626 Federal Street. Id. He 

further argues that the firearm found at 626 Federal Street was dissimilar to 

the one described by the complainant who claimed Harper assaulted her at 

gunpoint. Id.

The PCRA court concluded that the verdict was not so contrary to the 

evidence as to shock one’s sense of justice. PCRA Ct. Op. at 18. It found that 

the evidence was not tenuous, but rather strongly supported the verdict. Id.

at 18-19. We agree with the PCRA court’s determination that Harper’s

underlying claim lacks arguable merit. Additionally, Harper has not shown that 

there is a reasonable probability that the outcome of the proceedings would 

have been different if trial counsel had filed a post-sentence motion 

challenging the weight of the evidence. Therefore, we cannot conclude that 
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trial counsel was ineffective for failing to preserve a challenge to the weight 

of the evidence.

Newly Discovered Evidence Claim

Harper asserts he is entitled to post-conviction relief because of newly 

discovered evidence pursuant to 42 Pa.C.S.A. § 9543(a)(2)(vi). Harper’s Br. 

at 24. Specifically, Harper contends that “a police report prepared by Officer 

Bruce Cleaver contains exculpatory evidence that [Harper] was unaware of 

due to the grand jury rules pertaining to withholding discovery from 

defendants.” Id. He alleges that he “could not have obtained this information 

before the conclusion of the trial because it was barred to him by the grand 

jury rules” and the information “provides stand-alone exculpatory evidence 

pertaining to the narcotics at issue in this case.” Id.

Harper’s claim is undeveloped and is therefore waived. See

Commonwealth v. Thomas, 215 A.3d 36, 51 (Pa. 2019). Even if it is not 

waived, it is without merit. Harper fails to explain what the alleged exculpatory 

evidence found in the police report is or how the information would have 

affected the outcome of his trial. This claim fails. 

PCRA Court’s Failure to Grant an Evidentiary Hearing

Harper’s final issue is that the PCRA court erred in failing to hold an 

evidentiary hearing. Harper’s Br. at 24. He contends he raised issues of 

material fact that required the court to hold a hearing. Id. at 25.

A PCRA hearing is not a matter of right, and the PCRA court may decline 

to hold a hearing if there is no genuine issue concerning any material fact and 
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the petitioner is not entitled to relief as a matter of law. See Pa.R.Crim.P. 

907(1); Commonwealth v. Morrison, 878 A.2d 102, 109 (Pa.Super. 2005)

(en banc).

Here, the record supports the PCRA court’s findings that there were no 

genuine issues of material fact and that no post-conviction relief was due to 

Harper. Thus, an evidentiary hearing was not required.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/3/2023