J-S07019-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DANIEL LIVINGSTON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1761 EDA 2017

Appeal from the PCRA Order June 1, 2017

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0001554-2011

COMMONWEALTH OF PENNSYLVANIA

v.

DANIEL LIVINGSTON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2149 EDA 2017

Appeal from the PCRA Order June 30, 2017

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0001552-2011

BEFORE: BENDER, P.J.E., PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J. FILED JULY 09, 2018

Daniel Livingston appeals from the order dismissing his petition 

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546, without a hearing. Livingston alleges he was entitled to an evidentiary 

hearing, and ultimately a new trial, due to trial counsel’s ineffectiveness during 

his jury trial. We affirm. 
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For a recitation of the complete factual background and procedural 

history of this case, we direct the interested reader to the memorandum 

decision written by a prior panel of this Court in response to Livingston’s direct 

appeal. See Commonwealth v. Livingston, No. 3334 EDA 2012, at 1-6 (Pa. 

Super. filed Nov. 8, 2013) (unpublished memorandum). 

Briefly, on September 28, 2009, Jesse Jones was walking to the store 

when he ran into Livingston, Gerald Outland, and Parrish Holmes standing on 

the corner of Locust and Crowson streets in Philadelphia. Jones observed 

Outland and Holmes get into a verbal argument that morphed into a physical 

altercation. At some point, Outland removed himself from the physical 

altercation, walked over to Livingston, removed a gun from Livingston’s 

waistband, and used the gun to shoot Holmes in the stomach. Holmes was 

taken to the hospital for treatment. When the police interviewed Holmes 

concerning his gunshot wound the next day, Holmes informed the police that 

Outland shot him with Livingston’s gun. 

One month later, Detective William Knecht interviewed Holmes again 

concerning the events of September 28, 2009. Holmes identified both Outland 

and Livingston from a photo array. Prior to leaving the interview, Holmes, 

pointing to the photograph of Livingston, informed Detective Knecht, “if you 

ever find me dead, he did it.” N.T., Trial, 7/25/12, at 157. Based upon this 

information, Detective Knecht obtained and executed search warrants on both 

Outland and Livingston’s homes on November 5, 2009. Subsequent to the 

search, Livingston agreed to meet with the detectives, but failed to follow 
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through. An arrest warrant was issued for Livingston. However, police were 

unable to locate him. 

Two days after the police executed the search warrants, Jones ran into 

Holmes. Holmes informed Jones that “he was going to get his gun, because 

[Livingston] was saying he was going to kill him.” N.T., Trial, 7/26/12, at 67-

68. Ten minutes later, Jones observed Holmes walking towards Boyd and 

Woodlawn Street, approximately one block from where Jones was standing on 

Chew Street. Holmes walked up to an individual and spoke to him for a few 

seconds before being shot five times. Holmes did not survive.

Police recovered a Ruger 9-mm handgun and an ammunition magazine 

near the scene. The police were able to determine that all of the cartridge 

casings recovered from the scene were fired from the Ruger 9-mm handgun. 

Additionally, three fingerprints recovered from the ammunition magazine 

matched Livingston’s fingerprints.

Based upon this evidence, Livingston was arrested and charged with 

numerous offenses arising from these two incidents. A jury trial commenced 

on July 25, 2012. At trial, the Commonwealth presented, in part, the 

testimony of Detective Knecht and Jones. Detective Knecht testified regarding 

Holmes’s identification of Livingston and his belief that Livingston would kill 

him. Jones identified Livingston as the individual who shot Holmes and 

recounted that Livingston had informed him before Holmes’s death that “he 

was going to kill [Holmes] because he thought he was telling on him.” N.T., 

Trial, 7/26/12, at 63-65.
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On July 31, 2012, the jury convicted Livingston of first-degree murder, 

intimidation of a victim, retaliation against a victim, two counts of carrying a 

firearm without a license, two counts of possessing an instrument of crime, 

and two counts of possession of a firearm by a prohibited person.1

A panel of this Court affirmed his judgment of sentence on November 8, 

2013, and our Supreme Court denied his subsequent petition for allocatur. 

On December 3, 2014, Livingston filed a timely pro se PCRA petition. 

The PCRA court appointed counsel who later filed an amended petition. The 

PCRA court issued notice of its intent to dismiss Livingston’s petition without 

a hearing, and ultimately dismissed the petition.2 This timely appeal follows. 

“On appeal from the denial of PCRA relief, our standard and scope of 

review is limited to determining whether the PCRA court’s findings are 

supported by the record and without legal error.” Commonwealth v. 

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1 As the two counts of possession of a firearm by a prohibited person required 

proof of Livingston’s prior felony as an element of the offense, the trial court 

severed these charges from its first charge to the jury, and only charged the 

jury on these offenses once they had returned with a verdict on Livingston’s 

other charges. 

2 While the record reflects that Livingston’s PCRA petition collectively 

challenged his convictions under both docket numbers, it appears that a 

clerical error resulted in different dismissal dates for each docket number. 

Thus, the petition was dismissed on June 1, 2017, for the claims arising under 

docket number CP-51-CR-0001554-2011, while the claims arising under 

docket number CP-51-0001552-2011 were not dismissed until June 30, 2017. 

As Livingston filed a timely notice of appeal from each of these orders, this 

clerical error does not affect our review. 
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Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). On questions of 

law, our scope of review is de novo. See id.

“The right to an evidentiary hearing on a post-conviction petition is not 

absolute.” Commonwealth v. Walls, 993 A.2d 289, 295 (Pa. Super. 2010) 

(citations and brackets omitted). A PCRA court may decline to hold a hearing 

where it can determine, from the record, that there are no genuine issues of 

material fact. See Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 

2008). “With respect to the PCRA court’s decision to deny a request for an 

evidentiary hearing ... such 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) (citation omitted). 

Livingston’s sole issue on appeal asserts the ineffective assistance of 

trial counsel. We presume counsel provided effective assistance; Livingston

has the burden of proving otherwise. See Commonwealth v. Pond, 846 A.2d 

699, 708 (Pa. Super. 2004). “In order for [an a]ppellant to prevail on a claim 

of ineffective assistance of counsel, he must show, by a preponderance of the 

evidence, ineffective assistance of counsel which ... so undermined the truthdetermining process that no reliable adjudication of guilt or innocence could 

have taken place.” Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. 

Super. 2005) (citation omitted). Further,

[an a]ppellant must plead and prove by a preponderance of the 

evidence that: (1) the underlying legal claim has arguable merit; 

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

(3) [a]ppellant suffered prejudice because of counsel’s action or 

inaction. 
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Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011) (citations omitted). 

A failure to satisfy any prong of the test will require rejection of the entire 

claim. See Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).

“Arguable merit exists when the factual statements are accurate and 

could establish cause for relief. Whether the facts rise to the level of arguable 

merit is a legal determination.” Commonwealth v. Barnett, 121 A.3d 534, 

540 (Pa. Super. 2015) (citations and internal quotation marks omitted). 

“Prejudice is established if there is a reasonable probability that, but for 

counsel’s errors, the result of the proceedings would have been different. A 

reasonable probability is probability sufficient to undermine confidence in the 

outcome.” Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) 

(en banc) (citations and internal quotation marks omitted).

Livingston claims that trial counsel was ineffective in failing to object to 

the admission of evidence offered in the form of inadmissible hearsay.

Specifically, Livingston challenges the introduction of Holmes’s statement, 

elicited through Detective Knecht’s testimony, that if Detective Knecht ever 

found Holmes dead, it was at Livingston’s hand. See N.T., Trial, 7/25/12, at 

157. Livingston alleges that this statement is inadmissible hearsay, that trial 

counsel had no reasonable basis in failing to object to this statement, and that 

this statement was extremely prejudicial.

Conversely, the Commonwealth and PCRA court contend Livingston’s 

claim of ineffectiveness fails because the challenged statement is admissible 

evidence. Specifically, the PCRA court found that the statement, while 
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constituting hearsay, was admissible under Pennsylvania Rule of Evidence 

804(b)(6) Statement Offered Against a Party That Wrongfully Caused the 

Declarant's Unavailability. We agree. 

“Hearsay is an out-of-court statement offered to prove the truth of the 

matter asserted by the declarant.” Commonwealth v. Puksar, 740 A.2d 

219, 225 (Pa. 1999) (citation omitted). While our rules of evidence generally 

prohibit the admission of hearsay, there are several exceptions to the rule. 

Relevant to the instant case, Rule of Evidence 804(b)(6) provides:

Rule 804. Hearsay exceptions; declarant unavailable

(a) Criteria for Being Unavailable. A declarant is 

considered to be unavailable as a witness if the declarant: 

(4) cannot be present or testify at the trial or hearing 

because of death or a then-existing infirmity, physical 

illness, or mental illness ...

(b) The Exceptions. The following are not excluded by the 

rule against hearsay if the declarant is unavailable as a 

witness: 

(6) Statement Offered Against a Party That Wrongfully 

Caused the Decedent’s Unavailability. A statement 

offered against a party that wrongfully caused -- or 

acquiesced in wrongfully causing -- the declarant’s 

unavailability as a witness, and did so intending that 

result. 

Pa.R.E. 804(a)(4), (b)(6). 

Under this rule, our courts have found that statements made by a 

decedent against defendant, made prior to the decedent’s death, are not 

barred by the rules against hearsay if the Commonwealth shows that decedent 
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was killed in an attempt to prevent him from participating as a witness in 

another matter. See Commonwealth v. Kuncle, 79 A.3d 1173, 1186-1187 

(Pa. Super. 2013) (finding decedent’s statement that he was afraid defendant 

would attempt to kill him admissible under Rule 804(b)(6) where decedent 

was planning to be a witness against defendant in a child custody dispute); 

see also Commonwealth v. King, 959 A.2d 405, 413-417 (Pa. Super. 2008) 

(holding that Pa.R.E. 804(b)(6) allowed hearsay statements of murder victim 

shot to prevent the victim’s testimony regarding illegal arms purchase). 

Here, the evidence adduced at trial clearly supports the conclusion that 

Livingston’s alleged motive in killing Holmes was to make him unavailable as 

a witness in in a trial arising from the September 28, 2009 incident. Livingston 

was aware that he was being investigated concerning this incident. Further, 

he informed Jones that “he was going to kill [Holmes] because he thought he 

was telling on him.” N.T., Trial, 7/26/12, at 64. 

As the Commonwealth presented sufficient evidence that Livingston 

killed Holmes in order to keep him from testifying, and Holmes was clearly 

unavailable as a witness, this evidence was properly introduced under the 

forfeiture by wrongdoing exception to the hearsay rule. Accordingly, 

Livingston’s claim of trial counsel error lacks arguable merit and, thus, his sole 

ineffectiveness claim fails. The PCRA court committed no error in dismissing 

the petition without a hearing. 

Order affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/9/18