J-A09025-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CHESTER CARR 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 920 WDA 2023

Appeal from the PCRA Order Entered August 4, 2023

In the Court of Common Pleas of Erie County Criminal Division at No(s): 

CP-25-CR-0000788-2018

BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.

MEMORANDUM BY KUNSELMAN, J.: FILED: May 22, 2024

Chester Carr appeals from the order denying his first timely petition filed 

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541–9546. 

We affirm.

This Court has previously summarized the pertinent facts and procedural 

history as follows:

[Carr’s] charges arose on April 27, 2017, when the victim, 

Olivia Askins (“Askins”), purchased heroin laced with Fentanyl 

from [Carr] and died from an overdose. [Carr] supplied the drugs 

and directed his 16-year-old girlfriend, [J.S.], to deliver the drugs 

to Askins. At the time, [Carr] was incarcerated at the Erie County 

Prison. However, he used the prison telephone system to dictate 

to [J.S.] regarding where she could find [Carr’s] stash of drugs, 

prepare the drugs for delivery, contact Askins and deliver the 

drugs to her. [J.S.] drove to Askins’ house and delivered the 

drugs per [Carr’s] instructions.
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Commonwealth v. Carr, 227 A.3d 11, 12 (Pa. Super. 2020) (citation 

omitted).

On August 14, 2018, following a two-day trial, a jury found Carr guilty 

of conspiracy to commit drug delivery resulting in death (fentanyl) and related 

charges. On October 1, 2018, the trial court sentenced Carr to an aggregate 

term of 261 – 522 months incarceration, followed by a one-year probationary 

term. Carr filed a timely post-sentence motion to modify his sentence which 

the trial court denied. Carr appealed.

In his direct appeal, Carr raised two issues. First, he challenged whether 

“criminal conspiracy to commit a drug delivery resulting in death . . . is a legal 

cognizable crime or a logical impossibility?” Id. at 14 (capitalization omitted). 

Second, Carr challenged the sufficiency of the evidence supporting all of his 

convictions. This Court found no merit to Carr’s first issue. Id. at 18. 

Regarding the second, we found the sufficiency challenge waived because it 

was raised in only general terms in Carr’s Pa.R.A.P. 1925(b) statement, and 

Carr’s attempt to further develop the sufficiency claim in his reply brief was 

procedurally improper. Id. at 18-19. Nonetheless, “[t]o the extent that [Carr] 

properly preserved for appeal his claim that there was insufficient evidence to 

support his convictions because he was in prison at the time and could not 

have been in possession of or deliver the drugs, [Carr] would not be entitled 

to relief.” Id. at 19. We explained:

[O]ur review of the record reflects the evidence at trial

was sufficient to establish that, although [Carr] did not 

physically handle the drugs, he was in complete control of 
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the drug transactions. The evidence proves that J.S., in 

contacting and selling drugs to Askins, was acting solely at 

the direction of [Carr]. At trial, the Commonwealth 

presented twenty-six audio recordings of portions of 

telephone conversations between [Carr] and J.S. which took 

place while [Carr] was incarcerated. Those recordings 

spanned thirteen days, covering April 17, 2017 , and April 

30, 2017, and detailed the drug transactions that J.S. was 

to perform on [Carr’s] behalf.

Carr, 227 A.3d at 20 (citation to record omitted). Thus, on January 21, 2020, 

we affirmed Carr’s judgment of sentence.

Carr filed a timely pro se PCRA petition on January 14, 2021. The PCRA 

court appointed counsel, and PCRA counsel filed a supplemental PCRA petition. 

Carr testified at an evidentiary hearing held on April 22, 2021. Trial counsel 

testified at another evidentiary hearing held on June 21, 2021. On November 

30, 2021, the PCRA court entered an opinion and order denying Carr’s petition. 

PCRA counsel filed a timely appeal on Carr’s behalf.

On appeal, this Court noted the following procedural history:

Two months later, Carr filed a pro se motion for appointment 

of new counsel in this Court, asserting his PCRA counsel was 

ineffective. PCRA counsel then filed a petition for leave to 

withdraw as counsel and requested a remand for appointment of 

alternative appellate counsel. PCRA counsel conceded that Carr 

has asserted claims of ineffective assistance against him, 

implicating our Supreme Court’s holding in [Commonwealth v. 

Bradley, 261 A.3d 381 (Pa. 2021)]. Our Court deferred 

consideration of the petition to withdraw to the merits panel.

PCRA counsel subsequently filed a brief on Carr’s behalf. 

The brief did not include any mention of the claims of PCRA 

counsel ineffectiveness.

A few days later, Carr filed a pro se application for relief with 

this Court, seeking new counsel not associated with PCRA counsel. 

Specifically, he asserted there was a conflict of interest with 
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current PCRA counsel since counsel had filed a motion to 

withdraw. This Court denied the application for relief based on 

counsel filing a brief on Carr’s behalf.

A month later, Carr filed a pro se motion for application of 

enlargement of time to file a supplemental amended brief, in 

which Carr asserted the counseled brief was inadequate and that 

Carr had issues of arguable merit that counsel failed to include in 

the initial brief. This Court again denied relief based on counsel 

filing a brief on Carr’s behalf. 

Commonwealth v. Carr, 292 A.3d 1078 (Pa. Super. 2023) (non-precedential 

decision at 2-3).

This Court first discussed the circumstances surrounding Carr’s claims 

of PCRA counsel’s ineffectiveness. We noted that PCRA counsel could not raise 

his own ineffectiveness, “[n]or was Carr able to raise these claims with 

alternate counsel or pro se, see Bradley, 261 A.3d at 401, as this Court 

denied him alternate counsel, and denied him the ability to file a pro se

supplement brief.” Id. at 5. Thus, we vacated the order denying postconviction relief and remanded the matter “for the PCRA court to appoint Carr 

new counsel to assist Carr in raising his claims that PCRA counsel was 

ineffective.” Id. We also stated that our remand included “the opportunity 

for Carr to further develop these claims before the PCRA court and allow the 

court to rule on these claims in the first instance.” Id. (citing Bradley, 261 

A.3d at 402).

Following remand, the PCRA court appointed new counsel. After being 

granted a time extension, new counsel filed a supplemental PCRA petition on 

Carr’s behalf in which counsel noted Carr’s claim of ineffective assistance of 
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PCRA counsel for failing to raise a claim regarding Carr’s desire to testify. New 

counsel noted, however, that a claim regarding Carr testifying was raised 

below and that the issue was discussed during the evidentiary hearings in this 

case. 

On July 10, 2023, the PCRA court issued a Pa.R.A.P. 907 notice of its 

intent to dismiss Carr’s petition without a hearing. Carr did not file a response. 

By order entered August 4, 2023, the PCRA court denied Carr’s petition. This 

appeal followed. Both Carr and the PCRA court have complied with Pa.R.A.P. 

1925.

Carr raises the following two issues on appeal:

The [PCRA] court in failing to rule that trial counsel was ineffective 

in failing to call [Carr] to the stand during his trial to testify on his 

own behalf. 

Prior counsel erred in failing to properly develop the issue of 

whether the evidence presented at trial was sufficient to support 

a conviction, and thus this Court should rule on the merits of this 

issue.

Carr’s Brief at 6.

This Court’s standard of review for an order denying a PCRA petition 

calls for us to “determine whether the ruling of the PCRA court is supported 

by the evidence and free of legal error. The PCRA court’s factual findings will 

not be disturbed unless there is no support for the findings in the certified 

record.” Commonwealth v. Webb, 236 A.3d 1170, 1176 (Pa. Super. 2020) 

(citing Commonwealth v. Barndt, 74 A.3d 185, 191–92 (Pa. Super. 2013)).
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Carr’s issues raise a claim regarding the alleged ineffectiveness of trial 

and appellate counsel. To obtain relief under the PCRA premised on a claim 

that counsel was ineffective, a petitioner must establish, by a preponderance 

of the evidence, that counsel's ineffectiveness so undermined the truthdetermining process that no reliable adjudication of guilt or innocence could 

have taken place. Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 

2009). “Generally, counsel’s performance is presumed to be constitutionally 

adequate, and counsel will only be deemed ineffective upon a sufficient 

showing by the petitioner.” Id. 

The tripartite test we apply is well-settled, and each prong of the test 

has been explained as follows:

The burden is on the [petitioner] to prove all three of the 

following prongs: (1) the underlying claim is of arguable merit; 

(2) that counsel has 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. 

We have explained that a claim has arguable merit where 

the factual averments, if accurate, could establish cause for relief. 

Whether the facts rise to the level of arguable merit is a legal 

determination. 

The test for deciding whether counsel had a reasonable 

basis for his action or inaction is whether no competent counsel 

would have chosen that action or inaction, or, the alternative, not 

chosen, offered a significantly greater potential chance of success. 

Counsel’s decisions will be considered reasonable if they 

effectuated his client’s interests. We do not employ a hindsight 

analysis in comparing trial counsel’s actions with other efforts he 

may have taken. 

Prejudice is established if there is a reasonable probability 

that, but for counsel’s errors, the result of the proceeding would 
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have been different. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.

Commonwealth v. Sandusky, 203 A.3d 1033, 1043-44 (Pa. Super. 2019) 

(citations omitted; formatting altered).

In his first issue, Carr asserts that trial counsel was ineffective for failing 

to call Carr to the stand to testify on his own behalf. According to Carr, he 

“desired to testify and asserts that this testimony would have assisted the jury 

in determining that he was not guilty of the crimes for which he was 

convicted.” Carr’s Brief at 17. Carr further noted that he “did request to be 

able to speak at this trial.” Id. 

As this Court has summarized:

[T]he decision to testify on one’s own behalf is ultimately to 

be made by the accused after full consultation with counsel. 

In order to support a claim that counsel was ineffective for 

failing to call the appellant to the stand, the appellant must 

demonstrate either that (1) counsel interfered with his 

client’s freedom to testify, or (2) counsel gave specific advice 

so unreasonable as to vitiate a knowing and intelligent 

decision by the client not to testify in his own behalf. Counsel 

is not ineffective where counsel’s decision to not call the 

defendant was reasonable.

Commonwealth v. O’Bidos, 849 A.2d 243, 250 (Pa. Super. 2004) (citation, 

quotation marks, and brackets omitted)

Here, the PCRA court found no merit to Carr’s claim:

The trial transcript and [Carr’s] testimony at the PCRA 

hearing initially led support to his claim that he wanted to testify 

at trial (and for some inexplicable reason did not do so). Towards 

the conclusion of the trial, [the trial court] conducted a colloquy 

with [Carr] about whether or not he wanted to testify. [Carr] 

stated he wanted to testify, and the court recessed for lunch. 
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Immediately after resuming after the lunch break, the defense 

rested and the case proceeded to closing arguments. There is 

nothing on the trial record to indicate why [Carr] was not called 

to testify. Although [Carr] explained at the PCRA hearing that he 

did not publicly protest or state that he wanted to testify when his 

defense counsel rested because he had been previously

admonished for an outburst during the proceedings, there is no 

indication that he made any attempt to call the issue to the 

attention of his counsel or the court, even in a respectful fashion, 

at that time or any subsequent time up through the filing of this 

PCRA [petition]. Moreover, [Carr] did not offer any testimony at 

the PCRA hearing at to what testimony he would have provided.

The court notes [trial counsel’s] testimony that during the 

break after [Carr’s] colloquy that [Carr] was again advised against 

testifying, and [Carr] apparently followed that advice. [Trial 

counsel] also testified that he rested at that point because he did 

not have any other witnesses or testimony to present.

Carr was not refused his right to testify, and the trial court 

made it clear to him that he could testify and the decision was 

entirely up to him.

PCRA Court Opinion, 11/30/21, at 6-7 (citations to record and excess 

capitalization omitted).

The PCRA court then reproduced the exchange that occurred between 

the trial court and Carr before the luncheon recess. The court then continued:

Trial counsel also testified at the PCRA hearing that he told 

[Carr] that the decision [to testify] was totally up to [Carr]. 

During the jury charge, [the trial court] properly instructed the 

jury that [Carr] did not testify, that the decision not to testify was 

entirely up to him, and that the decision not to testify was his 

absolute right and could not be held against him. Again, there is 

no indication in the Clerk of Court’s file that [Carr] wrote to [the 

trial court] or [trial counsel] between the trial and sentencing to 

indicate that his right to testify had been violated. Additionally, 

[Carr] did not raise the issue of his inability to testify when he had 

an opportunity to speak at sentencing. Thus, the court finds that 

[Carr] was not refused the opportunity to testify, but apparently 
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changed his mind and chose not to. Accordingly, [Carr] is not 

entitled to relief on this issue. 

Id. at 9. Our review of the record supports the PCRA court’s conclusion.

Initially, we note that the trial transcripts do not appear in the electronic 

record sent to this Court. Although the PCRA court reproduced the colloquy 

before the luncheon recess for us, it appears that, following the recess, the 

trial court did not engage Carr in a further colloquy regarding his decision not 

to testify. Its absence, however, does not, in and of itself, mandate relief. 

See Commonwealth v. Todd, 820 A.2d 707, 712 (Pa. Super. 2003) 

(explaining that there is no express requirement that a trial court conduct a 

colloquy with regard to a defendant’s right to testify).

Moreover, regarding credibility, the PCRA court believed trial counsel’s 

version of the contested facts. We cannot disturb this determination. See 

Commonwealth v. Harmon, 738 A.2d 1023, 1025 (Pa. Super. 1999) 

(explaining that when a PCRA court’s determination of credibility is supported 

by the record, it cannot be disturbed on appeal). Here, the PCRA court 

credited trial counsel’s testimony that, once the proceedings resumed, Carr 

chose not to testify.

Finally, Carr cannot establish prejudice as he has not proffered on appeal 

specifically what testimony he would have provided that would have caused 

the jury to alter its verdict. See Commonwealth v. Alderman, 811 A.2d 

592, 596 (Pa. Super. 2002) (concluding that the petitioner failed to establish 

that he was prejudiced by counsel’s alleged failure to inform him about his 
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right to testify; “[w]ithout an offer of proof [the petitioner] has failed to 

demonstrate how his failure to testify resulted in a reasonable probability that, 

but for counsel’s errors, the result of the proceeding would have been 

different”).

Thus, for these reasons, Carr’s first ineffectiveness claim fails.

In his second issue, Carr argues that the PCRA court erred in failing to 

find that appellate counsel was ineffective for failing “to raise and preserve 

the sufficiency of evidence claim on direct appeal” because it was found waived 

for lack of specificity. According to Carr, “sufficient evidence was not 

presented at trial to provide a nexus between [Carr] providing drugs to his 

co-conspirator and then from the co-conspirator to the victim.” Carr’s Brief 

at 18.

We first discuss whether this claim is properly before us. As noted 

above, this Court previously remanded this matter so that new counsel could 

assist Carr in litigating his claims of PCRA counsel’s ineffectiveness. In his 

petition filed after remand, Carr did not raise this issue as a layered claim of 

PCRA counsel’s ineffectiveness. Rather, appellate counsel’s ineffectiveness 

was raised for the first time in Carr’s Rule 1925(b) statement. As such, it is 

waived. See Pa.R.A.P. 302(a) (providing that issues not raised before the 

lower court are waived and cannot be raised for the first time on appeal).1

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1 We note that PCRA counsel actually raised the claim of appellate counsel’s 

ineffectiveness in the supplemental petition he filed on Carr’s behalf in 

(Footnote Continued Next Page)
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Additionally, as noted above, in his direct appeal, this Court addressed 

Carr’s sufficiency challenge to the extent it was preserved. See supra. The 

fact that Carr now wishes to phrase his sufficiency challenge differently, such 

a challenge is arguably previously litigated under the PCRA. See 42 Pa.C.S.A. 

§ 9544(a); see also Commonwealth v. Towles, 208 A.3d 988, 1005 (Pa. 

2019) (explaining a claim is “previously litigated [under the PCRA] and not a 

proper subject for post-conviction relief,” when, “despite the determination of 

waiver, [the Supreme] Court nevertheless engaged in a merits resolution of 

the underlying claim”).

Moreover, the PCRA court rejected Carr’s sufficiency challenge for much 

the same reasons this Court did in Carr’s direct appeal. The PCRA court 

stated: 

[Carr] moved for a judgment of acquittal at the close of 

the Commonwealth’s case, and the trial judge, who was in 

the best position to judge the sufficiency of the evidence, 

denied the motion. Additionally, the court notes that [J.S.] 

testified at length about how [Carr] directed her as to where 

to procure the drugs for sale, how to sell them, that the 

victim had contacted [J.S.] around the time in question 

desperate to obtain heroin, and that [J.S.] delivered [Carr’s] 

drugs to the victim shortly before the victim’s overdose and 

subsequent death. Dr. Eric Vey, an expert in forensic 

pathology, testified that the victim’s cause of death was 

fentanyl toxicity. Dr. Vey further testified that, given the 

victim’s levels of fentanyl at the time of her death and the 

nature of fentanyl and how it is metabolized by the body, 

the victim died shortly after ingesting the fentanyl. This 

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February of 2021. The PCRA court considered and rejected this claim. See 

infra.
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evidence was sufficient to establish a connection between 

[Carr’s] drugs that were delivered to the victim shortly 

before her overdose and death. Thus, [Carr] is not entitled 

to relief on this issue.

PCRA Court Opinion, 11/30/21, at 10 (citations to record and excess 

capitalization omitted).

Alternatively, in this appeal, Carr argues that the Commonwealth failed 

to establish a nexus between his conduct and the victim’s death because the

drugs supplied by J.S., as directed by Carr, were not the drugs that killed her. 

See Carr’s Brief at 26-31. The PCRA court found no merit to this claim:

[Carr] also argues that the evidence was insufficient to 

prove that the fentanyl was the cause of the victim’s death 

because there were other controlled substances in the victim’s 

system at the time of her death. Dr. Vey testified as an expert in 

forensic pathology. He testified that the victim’s fentanyl levels 

at the time of her death were 11 times a lethal dose. Dr. Vey also 

testified there were other chemical substances in the victim’s 

system at the time of her death, including alprazolam (essentially 

Xanax), benzoylecgonine (an inactive breakdown product of 

cocaine), trazodone (at a level associated with therapeutic usage 

as would be prescribed by a doctor), and Naloxone/Narcan (an 

antidote for opioids). Dr. Vey testified that the other substances 

found in her blood were either inactive metabolites or were at 

minimum levels which did not contribute to the victim’s death. Dr. 

Vey concluded that the victim’s death was caused by ingestion of 

a lethal dose of fentanyl. This evidence was sufficient to establish 

that the fentanyl, and not the other chemical substances, in the 

victim’s blood, was the cause of the victim’s overdose and death. 

Thus, [Carr] is not entitled to relief on this issue.

PCRA Court Opinion, 11/30/21, at 10-11 (citations to record and excess 

capitalization omitted).
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Carr provides no basis to disturb the PCRA court’s conclusion. He merely 

asserts that, because Dr. Vey testified [“t]here was no heroin or heroin

metabolites present” in the victim’s blood at the time of her death, “heroin 

laced with fentanyl could not have been the cause been the cause of her 

death.” Carr’s Brief at 29 (citing U.S. v. Ewing, 749 F.App’x 317 (6th Circ. 

August 31, 2018)). Here, Carr was charged with, and convicted of, the 

delivery of fentanyl resulting in death. See supra. As the expert testimony 

supports this conviction, Carr’s claim fails.

In sum, neither of Carr’s ineffective assistance of counsel claims warrant 

post-conviction relief. We therefore affirm the PCRA court’s order denying his

petition.

Order affirmed.

 5/22/2024