J-S27007-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DONALD GRIFFITH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1916 EDA 2017

Appeal from the PCRA Order May 30, 2017

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

No(s): CP-51-CR-0004784-2011

BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY SHOGAN, J.: FILED JUNE 28, 2018

Donald Griffith (“Appellant”) appeals pro se from the order denying his 

petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 

9541–9546, without a hearing. We affirm.

The PCRA court summarized the history of this case as follows:

A jury convicted [Appellant] of first degree murder, 

possession of an instrument of crime (PIC) and violations of the 

Uniform Firearms Act (VUFA) on April 19, 2013. On that same 

day, [Appellant] was sentenced to life imprisonment without the 

possibility of parole. [Appellant] filed a post-[sentence] motion 

on April 23, 2013. The motion was denied on September 13, 

2013. On September 23, 2013, [Appellant] filed a notice of 

appeal, and was ordered on September 24, 2013 to file a 

statement of matters complained of on appeal. Said statement 

was filed on October 15, 2013. On January 17, 2014, this court 

issued an opinion. On October 6, 2014, the Superior Court 

affirmed the judgment of sentence. [Commonwealth v. 

Griffith, 108 A.3d 103, 2768 EDA 2013 (Pa. Super. filed October 

6, 2014) (unpublished memorandum).]
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On August 6, 2015, [Appellant] filed a pro se Post Conviction 

Relief Act (PCRA) petition. Thereafter, on April 10, 2017, 

appointed counsel filed a “no merit” letter pursuant to 

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

Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988). 

This court took the “no merit” letter under advisement, and issued 

a notice of intent to dismiss the PCRA petition pursuant to 

Pennsylvania Rule of Criminal Procedure 907 on April 24, 2017. 

On May 10, 2017, [Appellant] filed a response to counsel’s “no 

merit” letter. On May 30, 2017, this court issued an order formally 

dismissing [Appellant’s] PCRA petition [and permitting counsel to 

withdraw]. [Appellant] filed a notice of appeal on June 5, 2017.

PCRA Court Opinion, 10/19/17, at 1–2.

On appeal, Appellant presents the following questions for our review:

I. Did the PCRA Court err by failing to hold an evidentiary 

hearing to develop Appellant’s claim that missing portions 

of his trial transcripts prevented him from adequate 

appellate review?

II. Was trial counsel ineffective for advising Appellant that 

material eyewitnesses did not need to be called to testify?

Appellant’s Brief at 4.1

When reviewing the propriety of an order denying PCRA relief, we 

consider the record “in the light most favorable to the prevailing party at the 

PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super. 

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) 

(en banc)). This Court is limited to determining whether the evidence of 

record supports the conclusions of the PCRA court and whether the ruling is 

____________________________________________

1

 As the facts of the crime are not germane to the issues raised, we do not 

repeat them here. We note that Attorney Thomas L. McGill, Jr. (“trial 

counsel”) represented Appellant at trial and on direct review.
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free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 

2016). We will not disturb the PCRA court’s findings unless there is no support 

for them in the certified record. Commonwealth v. Lippert, 85 A.3d 1095, 

1100 (Pa. Super. 2014).

Appellant first complains that because the PCRA court found waiver, it 

did not conduct an evidentiary hearing to develop Appellant’s claim that 

missing portions of his trial transcript resulted in a meaningless appeal. 

Appellant’s Brief at 7. We reiterate that there is no absolute right to an 

evidentiary hearing. Commonwealth v. Springer, 961 A.2d 1262, 1264 

(Pa. Super. 2008). “[T]he PCRA court has discretion to dismiss a petition 

without a hearing when the court is satisfied ‘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.’” Commonwealth v. Cousar, 154 A.3d 287, 297 (Pa. 2017) 

(citing Commonwealth v. Roney, 79 A.3d 595, 604 (Pa. 2013)). “[S]uch a 

decision is within the discretion of the PCRA court and will not be overturned 

absent an abuse of discretion.” Commonwealth v. Mason, 130 A.3d 601, 

617 (Pa. 2015). On appeal, we examine the issues raised in light of the record 

“to determine whether the PCRA court erred in concluding that there were no 

genuine issues of material fact and denying relief without an evidentiary 

hearing.” Springer, 961 A.2d at 1264.
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Appellant desired an evidentiary hearing to develop his claims of 

ineffective assistance of counsel (“IAC”). When considering an IAC claim, we 

presume that counsel provided effective representation unless the PCRA 

petitioner pleads and proves that: (1) the underlying claim is of arguable 

merit; (2) counsel had no reasonable basis for his action or inaction; and (3) 

petitioner was prejudiced by counsel’s action or omission. Commonwealth 

v. Johnson, 179 A.3d 1105, 1114 (Pa. Super. 2018) (citing Commonwealth 

v. Pierce, 527 A.2d 973, 975–976 (Pa. 1987)). “In order to meet the 

prejudice prong of the ineffectiveness standard, a defendant must show that 

there is a ‘reasonable probability that but for counsel’s unprofessional errors, 

the result of the proceeding would have been different.’” Commonwealth v. 

Reed, 42 A.3d 314, 319 (Pa. Super. 2012). An IAC claim will fail if the 

petitioner’s evidence fails to meet any one of the three prongs. 

Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013). Because courts 

must presume that counsel was effective, the burden of proving 

ineffectiveness rests with the petitioner. Commonwealth v. Montalvo, 114

A.3d 401, 410 (Pa. 2015). “In accord with these well-established criteria for 

review, [an appellant] must set forth and individually discuss substantively 

each prong of the Pierce test.” Commonwealth v. Fitzgerald, 979 A.2d 

908, 910 (Pa. Super. 2009).

Contesting the PCRA court’s finding of waiver, Appellant asserts that he 

“did meaningfully discuss each prong of [trial] counsel’s ineffectiveness” in 
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failing to raise a challenge to objectionable portions of the prosecutor’s closing 

arguments.2 Appellant’s Brief at 7 (citing Objection to Counsel’s Finley Letter, 

5/10/17). Additionally, Appellant contends that PCRA counsel failed “to review 

the record when Appellant raised the claim in an initial pro se petition” and 

failed “to exercise reasonable diligence” by not raising a claim of trial counsel’s 

ineffectiveness. Id. at 8.

In his no-merit letter, PCRA counsel advised that Appellant could have 

raised the incomplete-transcript issue on direct appeal, but did not; therefore,

Appellant waived it. Letter of No Merit Pursuant to Commonwealth v. Finley, 

4/10/17, at 12. Additionally, PCRA counsel opined that Appellant:

does not provide any details regarding what those prejudicial 

statements were.[3] Further, [t]he trial record does not indicate 

that [trial counsel] (who is presumed to be effective) objected to 

or placed any alleged prejudicial statements on the record. As a 

result, this allegation of ineffective assistance of counsel has been 

waived for lack of development.

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2

 According to Appellant, the prosecutor “comment[ed] upon his opinion of 

what Appellant’s state of mind was during commission of the offense.” 

Appellant’s Brief at 9.

3

 PCRA counsel described Appellant’s claim as follows:

The Petitioner claims that the Prosecutor “referred to Petitioner’s 

state of mind several times in his closing argument with prejudicial 

remarks.” PCRA, p. 9 (unnumbered) (8/6/2015). The Petitioner 

further claims that the Prosecutor made “repeated prejudicial 

comments about Petitioner’s mental state [which] inflamed the 

jury’s determination such that they were unable to render a true 

verdict.” PCRA, p. 10.

Letter of No Merit Pursuant to Commonwealth v. Finley, 4/10/17, at n.9.
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Id. at 13.

The PCRA court addressed Appellant’s first issue as follows:

[Appellant] contends that his “appeal was meaningless because 

the prosecutor made prejudicial statements during his closing 

argument and the arguments were not transcribed” by the court 

reporter. As an initial matter, this contention has been waived 

since it could have been, but was not litigated on direct appeal. 

42 Pa.C.S.A. § 9544 provides that “an issue is waived if the 

petitioner could have raised it but failed to do so before trial, at 

trial, during unitary review, on appeal or in a prior state postconviction proceeding.” Additionally, if an appellant fails to 

meaningfully discuss each of the three ineffectiveness prongs, “he 

is not entitled to relief, and we are constrained to find such claims 

waived for lack of development.” Commonwealth v. Fears, 86 

A.3d 795, 804 (Pa. 2014) (citing Commonwealth v. Steele, 961 

A.2d 786, 797 (Pa. 2008)). [Appellant] argues that he was 

prejudiced by the prosecutor’s comments but fails to identify the 

allegedly prejudicial comments. Thus, this undeveloped 

ineffective assistance of counsel claim is meritless.

PCRA Court Opinion, 10/19/17, at 6–7.

Upon review, we agree with the PCRA court that Appellant waived his 

first issue. Appellant did not raise this issue on direct appeal. Arguably, his 

failure to do so is excused because he is alleging ineffective assistance of 

counsel. See Commonwealth v. Albrecht, 720 A.2d 693, 700 (Pa. 1998)

(“[A] PCRA petitioner’s waiver will only be excused upon a demonstration of 

ineffectiveness of counsel in waiving the issue.”). However, when Appellant 

resurrected his challenge to the prosecutor’s comments in his pro se PCRA 

petition, he did not frame it as an IAC claim. PCRA Petition, 8/6/15, at ¶ 9; 

42 Pa.C.S. § 9543(a)(2)(iii). In fact, Appellant first raised an IAC claim based 

on the prosecutor’s comments in his response to counsel’s “no merit” letter;
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however, he did not raise the IAC claim against trial counsel, but against PCRA

counsel, arguing that PCRA counsel should have filed an amended petition that 

raised trial counsel’s ineffectiveness. Objection to Counsel’s Finley Letter, 

5/10/17, at ¶¶ 6–8.

Moreover, Appellant failed to develop an IAC claim against trial counsel 

and PCRA counsel in his appellate brief. Pa.R.A.P. 2119(a). He does not 

discuss or apply the standard for ineffectiveness claims, and he fails to develop 

an argument concerning the Pierce factors. “Such an undeveloped argument, 

which fails to meaningfully discuss and apply the standard governing the 

review of ineffectiveness claims, simply does not satisfy Appellant’s burden of 

establishing that he is entitled to any relief.” Commonwealth v. Bracey, 

795 A.2d 935, 940 n.4 (Pa. 2001). Consequently, Appellant’s current IAC 

claim against trial counsel is waived, and his derivative claim of PCRA counsel 

ineffectiveness fails. See Commonwealth v. Hall, 872 A.2d 1177, 1184 (Pa. 

2005) (explaining that failure on the part of the petitioner to develop all three 

Pierce prongs will result in a failure to “establish the arguable merit prong of 

the claim of subsequent counsels’ ineffectiveness”).

Given our conclusion that Appellant waived his first issue, we discern no 

abuse of the PCRA court’s discretion in denying relief without an evidentiary 

hearing, as there were no genuine issues of material fact. Cousar, 154 A.3d 

at 297. Appellant’s contrary assertion fails.
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In his second issue, Appellant again assails trial counsel’s representation 

as ineffective. Appellant’s Brief at 11. According to Appellant, trial counsel 

lacked a reasonable strategic basis “for counseling Appellant to agree to not 

call witnesses who’s [sic] testimony would have corroborated Appellants [sic]” 

claim that he acted in self-defense. Id. at 12.4 Appellant also asserts that 

“there exists a reasonable probability that, but for [trial counsel’s] action, the 

jury would have been left with reasonable doubt as to Appellant’s culpability 

for 1st Degree murder[;] a conviction of a lesser degree of murder would have 

been more likely to occur had the jury heard the proffered testimony.” Id. at 

13.

In his no-merit letter, PCRA counsel explained that, although the 

witness, Andrew Taylor, was available to testify, Appellant and trial counsel 

“made a tactical and strategic decision not to call Mr. Taylor as a witness.” 

Letter of No Merit Pursuant to Commonwealth v. Finley, 4/10/17, at 9. 

Additionally, PCRA counsel detailed why Appellant’s “argument of ineffective 

assistance of counsel for failing to call Mr. Taylor has no arguable merit nor 

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

have been different had Mr. Taylor testified.” Id. at 9–10.

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4

 At trial, the defense considered calling two witnesses, Andrew Taylor and 

Angel Ortega. N.T., 4/17/13, at 69. On appeal, Appellant argues that trial 

counsel was ineffective for failing to call Andrew Taylor as a witness. 

Appellant’s Brief at 12. Consequently, any challenge to the absence of Angel 

Ortega’s testimony is waived.
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The PCRA court addressed Appellant’s second claim of error as follows:

[Appellant] claims that counsel was ineffective for failing to 

investigate and subpoena an eyewitness who made a statement 

to the police that [Appellant] attempted to back away from the 

witness and victim. To establish counsel’s ineffectiveness for 

failure to call a witness, [Appellant] must show that:

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

(3) counsel was informed of the existence of the 

witness or counsel should otherwise have known of 

the witness; (4) the witness was prepared to 

cooperate and testify for Appellant at trial; and (5) the 

absence of the testimony prejudiced Appellant so as 

to deny him a fair trial. A defendant must establish 

prejudice by demonstrating that he was denied a fair 

trial because of the absence of the testimony of the 

proposed witness. Further, ineffectiveness for failing

to call a witness will not be found where a defendant 

fails to provide affidavits from the alleged witnesses 

indicating availability and willingness to cooperate 

with the defense.

Commonwealth v. O’Bidos, 849 A[.]2d 243, 249 (Pa. Super. 

2004)[,] appeal denied, 860 A[.]2d 123 (Pa. 2004) (quoting 

Commonwealth v. Khalil, 806 A.2d 415, 422 (Pa. Super 2002).

In order to demonstrate prejudice, a petitioner must show 

how the uncalled witnesses’ testimony would have been beneficial 

under the circumstances of the case. Thus, counsel will not be 

found ineffective for failing to call a witness unless the petitioner 

can demonstrate that the witness’s statement would have been 

helpful to the defendant. A failure to call a witness is not per se

ineffective assistance of counsel, for such decision usually involves 

matters of trial strategy. Commonwealth v. Sneed, 45 A.3d 1096, 

1108–[11]09 (Pa. 2012).

In this case, [Appellant] argues that counsel was ineffective 

for failing to investigate and subpoena a witness, Andrew Taylor, 

despite his availability. The trial record shows that [Appellant] 

and counsel made a strategic decision not to call Mr. Taylor as a 

witness:
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Counsel: Judge, over lunch I had the opportunity to 

discuss with [Appellant] the thought of calling 

Mr. Taylor and Mr. Ortega as witnesses in the 

defense’s case. After considering both the 

upside and downside, we were in agreement 

that we would not call them.

N.T. 4/17/2013 at 78.

Thereafter, based on counsel’s representation, this court 

conducted a colloquy with [Appellant] on the strategic decision to 

not call Taylor as a witness:

Court: [Trial counsel] has told me that you also 

decided for tactile (sic) and strategic 

purposes not to call as a witness Andrew 

Taylor and you will not be calling as a witness 

Angel Ortega; is that correct?

Defendant: Yes, sir, it is.

Court: You discussed this with him?

Defendant: Yes, sir.

Court: The two of you are in agreement that you will

not call either one of those witnesses - is that

right?

Defendant: Yes, sir.

Court: Did anyone threaten you, promise you

anything or force you to make any of the

decisions you made?

Defendant: No, sir.

Court: Are those decisions made of your own free 

will?

Defendant: Yes, sir.

Court: Did you discuss them with [trial counsel]?
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Defendant: Yes.

Court: Are you satisfied with [his] services?

Defendant: Absolutely, yes, sir.

N.T. 4/17/2013 at 81-82.

Here, petitioner is bound by his statements made during the 

oral colloquy and may not now assert a claim that contradicts his 

in court admissions. Commonwealth v. Muhammad, 794 A.2d 378, 

384 (Pa. Super. 2002). Thus, this claim is meritless.

PCRA Court Opinion, 10/19/17, at 7–9.

The record disproves Appellant’s claim that trial counsel was ineffective 

for failing to call Andrew Taylor as a witness. The trial court colloquied 

Appellant regarding his strategy not to present the witness. N.T., 4/17/13, at 

81–82. Appellant specifically informed the trial court that he was aware of his 

right to present the witness, but that he decided not to call him after 

consultation with his attorney. Id. The trial court found that Appellant “has 

knowingly, intelligently, and voluntarily been able to make the decisions 

discussed on this record.” Id. at 82. Having made an informed decision not 

to call Andrew Taylor as a witness, Appellant cannot now fault trial counsel for 

failing to do so. Commonwealth v. Ligons, 971 A.2d 1125, 1148 (Pa. 2009) 

(citations omitted). The record supports the conclusions of the PCRA court,

and its ruling is free of legal error. Thus, we affirm the order denying Appellant 

relief.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/28/18