J-S45008-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

SHARIF MYRICK,

Appellant No. 1539 EDA 2018

Appeal from the PCRA Order Entered April 24, 2018

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0002987-2010

BEFORE: BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 21, 2019

Appellant, Sharif Myrick, appeals from the post-conviction court’s April 

24, 2018 order denying his first, timely petition under the Post Conviction 

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

The PCRA court summarized the facts of this case in its Pa.R.A.P. 

1925(a) opinion, and we need not reiterate them herein. See PCRA Court 

Opinion, 12/11/18, at 2-3. We only briefly note that Appellant was convicted 

in May of 2011 of first-degree murder and related offenses, for which he 

received an aggregate sentence of life imprisonment, without the possibility 

of parole. This Court affirmed his judgment of sentence on direct appeal, and 

our Supreme Court denied his subsequent petition for allowance of appeal. 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-S45008-19

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See Commonwealth v. Myrick, 118 A.3d 449 (Pa. Super. 2015) 

(unpublished memorandum), appeal denied, 116 A.3d 604 (Pa. 2015).

On September 23, 2015, Appellant filed the pro se PCRA petition 

underlying the present appeal. Counsel was appointed, and he filed an 

amended petition on Appellant’s behalf. On March 26, 2018, the PCRA court 

issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition

without a hearing. Appellant did not respond, and on April 24, 2018, the court 

dismissed his petition.

Appellant filed a timely notice of appeal, and he also complied with the 

court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors 

complained of on appeal. Herein, he raises one issue for our review: “Did the 

PCRA [c]ourt err when it dismissed the [a]mended [p]etition, without holding 

an evidentiary hearing, even though []Appellant pled, and would have been 

able to prove, that he was entitled to relief?” Appellant’s Brief at 3.

Initially, we note that:

“In reviewing the propriety of an order granting or denying PCRA

relief, an appellate court is limited to ascertaining whether the 

record supports the determination of the PCRA court and whether 

the ruling is free of legal error.” Commonwealth v. Johnson, ...

966 A.2d 523, 532 ([Pa.] 2009). We pay great deference to the 

findings of the PCRA court, “but its legal determinations are 

subject to our plenary review.” Id.

Commonwealth v. Matias, 63 A.3d 807, 810 (Pa. Super. 2013).

While Appellant sets forth only one issue in his Statement of the 

Questions Presented, his Argument section encompasses two distinct claims: 

(1) that his trial counsel acted ineffectively by not investigating, and calling to 
J-S45008-19

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the stand, Maalik Gleaves, who would have testified that Appellant acted in 

self-defense; and (2) that he has discovered new evidence of a second eyewitness to the crime, Khareem Little, who also would have testified that 

Appellant killed the victim in self-defense. In assessing these issues, we have 

reviewed the certified record, the briefs of the parties, and the applicable law. 

Additionally, we have considered the thorough and well-crafted opinion of the 

Honorable Gwendolyn N. Bright of the Court of Common Pleas of Philadelphia 

County. We conclude that Judge Bright’s well-reasoned opinion accurately 

disposes of the issues presented by Appellant.1 Accordingly, we adopt her 

opinion as our own and affirm the order dismissing Appellant’s petition for the 

reasons set forth therein.

Order affirmed.

____________________________________________

1 We note that Judge Bright’s decision addresses the issues raised in 

Appellant’s Rule 1925(b) statement, which were stated slightly differently 

than how he presents them in his appellate brief. For instance, in his concise 

statement, Appellant framed each issue as pertaining to both Gleaves and 

Little, arguing that that his counsel ineffectively failed to call each man to the 

stand. He also asserted that both men’s proposed testimony constitutes afterdiscovered evidence. However, on appeal, Appellant focuses only on Gleaves 

in regard to his ineffectiveness claim, and only on Little in his after-discoveredevidence issue. Notwithstanding Appellant’s attempt to recast his claims on 

appeal, his arguments are meritless for the reasons set forth in Judge Bright’s 

opinion.
J-S45008-19

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/21/19
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IN THE COURT OF COMMON PLEAS 

PHILADELPHIA COUNTY 

CRIMINAL TRIAL DIVISION 

FILED 

28TB DEC I I AH JI: 0 3 

COMMONWEALTH OF PENNSYLVANIA 

BRJGHT,J. 

V. 

SHARIF MYRICK 

CP-51·CR·0002987-20IO Comm. v. Myrici<, Shor�

Opinion 

111111111111111 I I l!II I Ill 

_ f\2008007.41 

: SUPERIOR COURT OF PENNSYLVANIA 

1539 EDA 2018 

OPINION 

On May 16, 2011, following a jury trial before this Court, Appellant was convicted of 

Murder of the First Degree and violation of Section 6106 of the Pennsylvania Uniform Firearms Act 

(VUF A). He was thereafter sentenced to serve a term of imprisonment for life without parole for 

Murder of the First Degree and two and one half (2 'h) years to five (S) years of confinement for 

VUF A Appellant directly appealed to the Superior Court and judgment of sentence was affirmed on 

January 20, 2015. See 1633 EDA 201 1. Appellant then filed a petition allocator with the Supreme 

Court, which was denied on May 20, 2015. See 83 EAL 2015. On September 23, 2015, Appellant filed 

a petition pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541, et seq., and 

counsel was subsequently appointed. On April 24, 2018, Appellant's PCRA petition was formally 

dismissed. This timely appeal followed. 

In his Rule l 925(b) Statement of Matters Concerned of on Appeal, Appellant alleges the 

following issues: 

1. Ineffective assistance of counsel violating the Sixth Amendment of the United States 

Constitution and to corresponding Sections of the Pennsylvania Constitution where counsel 

failed to properly investigate, prepare and present this case and failed to locate and 

LOWER COURT OPINION - APPENDIX 
subpoena witness(es) who should have been able to have been located and where counsel 

failed to make any effort to do so. 

2. Newly discovered evidence in the form of one Malik Gleaves, who came forward with 

exculpatory evidence that would have made a difference at trial. 

3. The after-discovered evidence presented in the Affidavit of one Khareern Little, whose 

testimony, if believed at an evidentiary hearing, would give the Defendant a total defense to 

the charges as it would clearly have indicated he acted in self-defense. 

FACTS 

The facts of this case were taken from this Court's Rule 1925(a) Opinion's summarization of 

the facts as follows: 

On June 22, 2009, after having spent the day together, Decedent Shariff Jenkins and his friend, 

John Mincer, ended up in the evening in the courtyard of Morton Homes located at Morton and 

Rittenhouse Streets, Philadelphia, PA. 5/11/2011 N.T. at 69-70; 5/12/2011 N.T. at 32-33, 40.

1 Mincer 

was sitting on a wall near the courtyard when he observed Decedent and Appellant engage in an 

argument. Mincer also heard gunshots being fired. ld. at 40, 41, 46, 55-57. Katrina Jenkins, 

Decedent's mother, testified that Mincer told her that prior to the shooting Appellant and Decedent had 

played a number of dice games which Decedent had won and shared his winnings with Appellant. 

However, when the last game was won by Decedent he refused to share the money and an argument 

ensued. Decedent and Appellant separated, but Appellant returned with a gun and shot the Decedent. 

5/12/2011 N.T. at 58-59, 66-67; 5/13/2011 N.T. at 60-61. 

Cherell Jefferies testified that she heard the gunshots and went outside where she observed 

Decedent lying in the courtyard. 5/11/201 l N.T. at 61-63. Jefferies called police and attempted to 

render assistance. 

Philadelphia Police Officer Steven Lupo was patrolling in the area of Morton Homes when he 

heard the gunshots. 5112/20 I I N. T. at 120-121. Upon receiving a radio call about the shooting he went 

I N.T. refers to the Notes of Testimony taken at the jury trial before the Honorable Gwendolyn N. 

Bright on May 11-16, 2011. 

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to the scene where he observed a group of people in the courtyard area. There. he observed Decedent 

lying on the ground in a pool of blood. Id. at 122. Lupo also observed a firearm magazine on the 

ground not far from the body. Id. at 123-J 24. Later, while Lupo and Officer Broaddus were securing 

the �cene Broaddus discovered a silver semi-automatic handgun with a brown handle laying in the 

grass in the rear of 4 77 Rittenhouse Street. Id. at 127. 

Crime Scene Investigation William Whitehouse photographed the scene and collected the 

ballistics evidence. gL at 13 6-138. He recovered the handgun in the rear yard of 4 77 Rittenhouse 

Street, several fired .45 caliber cartridges; a firearm magazine assembly; 14 firearm cartridge casings; 

multiple bullet fragments; and an oxidized old .9mm fired cartridge case which he opined, due to its 

condition. was there prior to the shooting. Id. at 138-150. All of the evidence was collected and 

submitted to the Firearms Identification Unit for examination and analysis. Id. at 152. Police Officer 

Robert Stott, a firearms examiner in ihe Firearms Identification Unit, received the evidence 

Whitehouse submitted and also 3 lead fragments taken from Decedent's leg, and after examination 

found that, with the exception of the . 9mm Luger, the ballistics evidence was fired from the same 

firearm. 5/13/2011 N.T. at 14-25. 

Dr. Samuel Gulino, Philadelphia Medical Examiner, testified that Decedent's remains were 

received by the Medical Examiner's office with three gunshot wounds to the back, right knee. and right 

fireann.5/12/2011 N.T. at 13-J.4. He stated that the gunshot to the back went through the right lung 

r�sulting in bleedi�& into the chest cavity around ·the lung, bleeding into the lung tissue, and collapse of 

the lung. 'Id. at 16-J 7. He testified that the cause of death was multiple gunshot wounds and the 

mariner of death was homicide. Id. at 22. 

DISCUSSION 

Appellant's first claim of error is that his trial counsel provided ineffective assistance by failing 

to "properly investigate, prepare and present this case" and by failing to "locate a�d subpoena 

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witness(es) who should have been able to have been located and where counsel failed to make any 

effort to do so." This claim is without merit. 

Under the PCRA, a petitioner may be entitled to relief if he is able to plead and prove that a 

conviction or sentence resulted from ineffective 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). The law requires the presumption 

that counsel was effective, unless the petitioner can fulfill his burden and prove otherwise. See 

Commonwealth v. Payne, 794 A.2d 902 (Pa. Super. 2002). In order to prevail on an ineffective 

assistance of counsel claim, petitioner bears the burden of demonstrating: "(I) the underlying claim is 

of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; 

and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome 

of the proceedings would have been different." Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 

2001). "Failure to satisfy any prong of the test will defeat an ineffectiveness claim.".Commonwealth v. 

Williams, 863 A.2d 505, 513 (Pa. 2004). 

Furthermore, counsel's choices cannot be evaluated in hindsight, but rather should be examined 

in light of the circumstances at that time. See Commonwea1th v. Hardcastle, 549 Pa. 450, 701 A.2d 

541 ( 1997). Even if there was no reasonable basis for counsel's course of conduct, a petitioner is not 

entitled to relief if he fails to demonstrate prejudice. See Commonwealth v. Douglas. 537 Pa. 588, 645 

A.2d 226 (1994). In Commonwealth v. Peterkin. the court explained that "(t]he reasonableness of 

counsel's investigative decisions depends critically on the information supplied by the defendant." 511 

Pa. 299, 319, 513 A.2d 373, 383 (1986). 

Appellant must prove: (i) the witness existed; (ii) the witness was available to testify; (iii) 

counsel knew of, or should have known of, the existence of the witness; (iv) the witness was willing to 

testify; and (v) the absence of the testimony was so prejudicial as to have denied the defendant a fair 

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trial. Commonwealth v. Pander, 100 A.3d 626, 638-639 (Pa. Super. 2014) (internal quotations and 

citations omitted), appeal denied, I 09 A.3d 679 (Pa.20 I 5). 

Accordingly, Appellant has not properly established an ineffectiveness claim. Appellant asserts 

that counsel was ineffective for not calling Malik Gleaves and Khareem Little to testify that he acted 

in self-defense. However, Appellant did not plead or proffer evidence that these witnesses were 

available and willing to testify. further, he does not explain how counsel knew or should of known 

that these witnesses existed. Since Appellant is also claiming that these witnesses are "after-acquired 

evidence," which will be discussed infra, it is clear that Appellant was not even aware these witnesses 

existed himself at the time of trial. Especially since he discovered the alleged witnesses while 

incarcerated. Appellant also does not detail what information he provided to his counsel which would 

have led him to discover these witnesses. Thus, no relief is warranted. 

Appellant's second and third allegations are that both witnesses', Malik Gleaves and Khareem 

Little, testimony would qualify as after-discovered evidence and their testimony would have provided 

exculpatory evidence for him at trial. After-discovered evidence must: (1) be discovered after trial and 

could not have been obtained any sooner by the exercise of reasonable diligence; (2) not be merely 

corroborative or cumulative; (3) not be used solely for impeachment purposes; and (4) be of such a 

nature and character that a different verdict will likely result if a new trial is granted. Commonwealth 

v. Johnson, 84 l A.2d 136, 140-14 l (Pa. Super. 2003). Under the PCRA, the burden of proof is on the 

petitioner (Appellant) to prove his claim by a preponderance of the evidence. 42 Pa.C.S. § 9543(a). 

First it must be noted that Appellant's after-discovered evidence claim is a double-edged 

sword. Appellant' first contention is that his counsel was ineffective for failing to properly investigate 

and discover these witnesses, and he now argues that these witnesses have provided new evidence that 

could not have been obtained at trial by reasonable diligence. Even without taking his ineffectiveness 

claim into consideration, Appellant cannot demonstrate that this evidence is "of such a nature and 

s 
character that a different verdict- will likely result if a new trial is granted." The evidence comes almost 

a decade after the crime from two of Appellant's fellow inmates. Also, the physical evidence, as well 

as the testimony from witnesses at trial, directly contradicts Appellant and the newly alleged witnesses 

story of self-defense. 

The victim was shot in the back, which would preclude a claim of self-defense. 5/12/11 N.T. 

at 13. See Commonwealth v. Yanoff, 690 A.2d 260, 265 (Pa. Super. 1997) ("The fact that Appellant 

shot the victim in the back clearly undermines his claim of self-defense."). Furthermore, the physical 

evidence does not correspond to a shootout between the defendant and victim. Thirteen of the fourteen 

fired cartridge casings found at the scene of the crime were fired from the same firearm. The fifteenth 

casing was oxidized, which the crime scene investigator at trial opined that it had to have already been 

present before the incident in question due to the condition. The inmates' story simply does not 

support the physical evidence and it also contradicts the testimony given at trial. Therefore, it is not of 

such character and nature as to change the outcome of the trial. No relief is necessary. 

CONCLUSION 

For the foregoing reasons, Appellant is not entitled to relief from his conviction and Judgment 

of Sentence should be affirmed. 

BY THE COURT: 

DATE: /.).,l f) 1 

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