J. S26027/17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

MICHAEL ALLEN WILLIAMS, :

:

APPELLANT :

: No. 1259 MDA 2016

Appeal from the PCRA Order June 28, 2016

In the Court of Common Pleas of Lebanon County 

Criminal Division at No(s): CP-38-CR-0000414-2014

 

BEFORE: BOWES, J., DUBOW, J., and FITZGERALD, J.*

MEMORANDUM BY DUBOW, J.: FILED JUNE 22, 2017

Appellant, Michael Allen Williams, appeals from the June 28, 2016 

Order denying his first Petition for relief filed pursuant to the Post Conviction 

Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46, and challenges, inter alia, the 

effectiveness of trial counsel. After careful review, we affirm on the basis of 

the trial court’s Opinion. 

The trial court’s Pa.R.A.P. 1925(a) Opinion includes a thorough and 

complete narrative of the facts and procedural history of this case, which we 

adopt for purposes of this appeal. See Trial Court Opinion, filed 6/28/16, at 

2-12. While we will not go into exhaustive detail here, some of the relevant 

facts are as follows.

 

*

Former Justice specially assigned to the Superior Court.
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On February 15, 2014, at a bar in the city of Lebanon, Appellant, 

believing that the victim had been flirting with his girlfriend, entered the bar 

with a knife in his hand, walked directly up to the victim at a fast pace, and 

began stabbing him. Although the victim was unarmed, he was able to fight 

off Appellant, eventually subduing him. The bartender, Lori Smith, 

witnessed the fight. In addition, security cameras inside the bar captured 

the entire incident from two different angles. Police transported the victim, 

who was bleeding heavily from 13 stab wounds, to the Hershey Medical 

Center by ambulance, where he was treated for his injuries.

Police officers who responded to the scene arrested Appellant and 

charged him with Attempted Homicide, Aggravated Assault, and other 

related charges. 

Appellant proceeded to a jury trial. On August 6, 2014, the jury 

acquitted Appellant of the Attempted Homicide charge, but found him guilty 

of Aggravated Assault and all other related charges. On October 29, 2014, 

the trial court sentenced Appellant to 111⁄2 to 23 years of imprisonment. 

Appellant filed a timely pro se PCRA Petition. The PCRA court 

appointed counsel, who filed an Amended PCRA Petition on April 5, 2016. 

The PCRA court held an evidentiary hearing on June 20, 2016. On 

June 28, 2016, the PCRA court entered an Order denying Appellant’s PCRA 

Petition. 
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Appellant timely appealed, and all parties complied with Pa.R.A.P. 

1925. On appeal, Appellant raises six issues.

1. Whether Trial Counsel was ineffective when she failed to 

object to the Commonwealth’s leading questions and hearsay 

evidence from multiple witnesses during Appellant’s [t]rial?

2. Whether Trial Counsel was ineffective when she failed to call 

witnesses on Appellant’s behalf at trial where the Appellant gave 

Trial Counsel a list of potential witnesses and phone numbers 

and specifically told Trial Counsel that he definitely wanted 

[Appellant’s girlfriend,] Melissa Eiler[,] to testify on his behalf?

3. Whether Trial Counsel was ineffective when she failed to 

properly cross-examine the Commonwealth’s witness, Lori 

Smith, where her testimony clearly contradicted the video 

footage, and where said contradiction would have shown the jury 

that it was plausible that [] Appellant did not wield a weapon?

4. Whether Trial Counsel was ineffective when she failed to 

introduce the alleged victim’s toxicology reports from the night 

of the alleged incident, where said reports were known and 

available to Trial Counsel, and would have supported Appellant’s 

self-defense claim?

5. Whether Trial Counsel was ineffective when she allowed the 

Trial Court to utilize an incorrect criminal record at [s]entencing?

6. Whether Appellant was denied his constitutionally-guaranteed 

right to due process when the Commonwealth disclosed 

information to the alleged victim prior to his testimony, 

regarding the whereabouts of the weapon that was used in the 

alleged incident?

Appellant’s Brief at 4-5 (reordered for ease of disposition).

When reviewing the denial of PCRA Petition, “we examine whether the 

PCRA court’s determination is supported by the record and free of legal 

error.” Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal 

quotation marks and citation omitted). We grant great deference to the 
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findings of the PCRA court, and “these findings will not be disturbed unless 

they have no support in the certified record.” Commonwealth v. Wilson, 

824 A.2d 331, 333 (Pa. Super. 2003). “The scope of review is limited to the 

findings of the PCRA court and the evidence of record, viewed in the light 

most favorable to the prevailing party at the trial level.” Commonwealth 

v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). Moreover, 

“[w]here a PCRA court’s credibility determinations are supported by the 

record, they are binding on the reviewing court.” Commonwealth v. 

White, 734 A.2d 374, 381 (Pa. 1999). With this standard in mind, we 

address each of Appellant’s claims.

Ineffective Assistance Claims

Appellant’s first five issues contend that trial counsel provided 

ineffective assistance to Appellant. In analyzing claims of ineffective 

assistance of counsel, we presume that counsel was effective unless the 

PCRA petitioner proves otherwise. Commonwealth v. Williams, 732 A.2d 

1167, 1177 (Pa. 1999). In order to succeed on a claim of ineffective 

assistance of counsel, Appellant must demonstrate (1) that the underlying 

claim is of arguable merit; (2) that counsel’s performance lacked a 

reasonable basis; and (3) that the ineffectiveness of counsel caused the 

appellant prejudice. Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 

2003). “[Where] the underlying claim lacks arguable merit, counsel cannot 

be deemed ineffective for failing to raise it.” Commonwealth v. Koehler, 
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36 A.3d 121, 140 (Pa. 2012). Appellant bears the burden of proving each of 

these elements, and his “failure to satisfy any prong of the ineffectiveness 

test requires rejection of the claim of ineffectiveness.” Commonwealth v. 

Daniels, 963 A.2d 409, 419 (Pa. 2009) (citation omitted). 

In his first ineffectiveness claim, Appellant points to seven specific 

instances in which he avers that the Commonwealth improperly asked 

leading questions of witnesses or elicited hearsay testimony from witnesses. 

In each of these seven instances, Appellant avers that trial counsel was 

ineffective for failing to object. See Appellant’s Brief at 9-20. The 

Honorable Bradford H. Charles has authored a comprehensive, thorough, 

and well-reasoned Opinion, separately addressing each of Appellant’s seven 

claims, with references to the record and a thorough discussion of the 

relevant case law. After a careful review of the parties’ arguments and the 

record, we affirm on the basis of that Opinion, which found that certain 

leading questions from the Commonwealth were not improper, and that 

Appellant was not prejudiced by trial counsel’s failure to object where the 

testimony or questions may have been improper. See Trial Court Opinion at 

14-21.

Second, Appellant avers that trial counsel was ineffective for failing to 

call three witnesses: his girlfriend, Melissa Eiler, as well as Java Pinson, 

Dawn Justiano, and Latoya Williams. Appellant’s Brief at 20-26. Judge 

Charles’ Opinion includes a comprehensive, thorough, and well-reasoned 
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discussion of this claim. After a careful review of the parties’ arguments, 

and the record, we affirm on the basis of that Opinion, which found that: (i) 

Appellant failed to establish that Java Pinson, Latoya Williams, or Latoya 

Williams were known to trial counsel and available at trial; (ii) trial counsel 

strategically chose not to call Melissa Eiler because her testimony, that the 

victim had made romantic advances towards her, would support the 

Commonwealth’s theory of motive; and (iii) Appellant was not prejudiced by 

trial counsel’s failure to call Melissa Eiler because she could only testify to 

threats the victim made to Appellant after Appellant had already stabbed 

the victim. Trial Court Opinion at 22-23.

Third, Appellant avers that trial counsel was ineffective for failing to 

cross-examine Commonwealth’s witness Lori Smith on alleged 

inconsistencies between her testimony and the surveillance footage of the 

attack. Appellant’s Brief at 27-31. Judge Charles’ Opinion includes a 

comprehensive, thorough, and well-reasoned discussion of this claim. After 

a careful review of the parties’ arguments, and the record, we affirm on the 

basis of that Opinion, which found that trial counsel was not ineffective for 

failing to cross-examine Lori Smith on the alleged inconsistencies because 

there were no substantive inconsistencies between her testimony at trial and 

the surveillance footage.1 Trial Court Opinion at 23-24.

 

1 At the PCRA hearing, Appellant explained the lack of substantive 

inconsistencies by averring that someone must have altered the surveillance 
J. S26027/17

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Fourth, Appellant avers that trial counsel was ineffective for failing to 

present a toxicology report that revealed that the victim had drugs in his 

system at the time Appellant stabbed him. Appellant’s Brief at 31-35. 

Judge Charles’ Opinion includes a comprehensive, thorough, and wellreasoned discussion of this claim. After a careful review of the parties’ 

arguments, and the record, we affirm on the basis of that Opinion, which 

notes that trial counsel was not ineffective for failing to introduce the report 

into evidence because “no such toxicology report exists.” Trial Court Opinion 

at 24.

Fifth, Appellant avers that trial counsel was ineffective for failing to 

challenge the veracity of four felony convictions from North Carolina that 

were included in Appellant’s prior record score. Appellant’s Brief at 38-44. 

Judge Charles’ Opinion includes a comprehensive, thorough, and wellreasoned discussion of this claim. After a careful review of the parties’ 

arguments, and the record, we affirm on the basis of that Opinion, which 

found that: (i) trial counsel was not ineffective for failing to challenge the 

inclusion of his prior convictions in Appellant’s prior record score where she 

had investigated Appellant’s mistaken identity claim and learned that his 

prior record had been verified using Appellant’s name, date of birth, Social 

Security number, and fingerprints; and (ii) even if the contested convictions 

 

footage. Trial Court Opinion at 23. The trial court found no evidence to 

support this claim, and Appellant does not advance this claim in his Brief to 

this Court.
J. S26027/17

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had not been included in Appellant’s prior record score, Judge Charles, who 

sentenced Appellant, would have imposed the same sentence. Trial Court 

Opinion at 25-28.

Prosecutorial Misconduct

In his final claim, Appellant avers that the prosecutor committed 

prosecutorial misconduct when she disclosed information to the victim in 

order to evoke that information from him during his direct examination. 

Appellant’s Brief at 35-38. Specifically, Appellant avers that the victim 

testified at trial that Appellant “went home and took the knife off the wall to 

come back and kill [the victim].” Id. at 37. According to Appellant, there is 

no way the victim could have known that the knife hung on the wall in his 

home and, therefore, the Commonwealth must have improperly given the 

victim this information. Id.

Appellant’s Brief quotes Appellant’s testimony at the PCRA hearing, 

where he claimed to recall the victim offering that testimony at trial. Id. at 

36-37. Appellant does not provide citation to the trial transcript indicating 

where the victim testified to the location of the knife in Appellant’s home. 

Further, Appellant does not direct our attention to any evidence that would 

support his bald allegation of prosecutorial misconduct. 

Judge Charles’ Opinion includes a comprehensive, thorough, and wellreasoned discussion of this claim. After a careful review of the parties’ 

arguments, and the record, we affirm on the basis of that Opinion, which 
J. S26027/17

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found, inter alia, that Appellant misrepresents the victim’s testimony and the 

trial transcript is “devoid of any testimony indicating where [Appellant] kept 

a knife within his home.” Trial Court Opinion at 24-25. 

The parties are directed to attach a copy of the trial court’s June 28, 

2016 Opinion to all future filings.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/22/2017
1 

he also claims that his prior record was incorrectly reported ... even though 

complains that the official Court Reporter intentionally omitted testimonial 

exchanges that he professes to recall from the trial. If this were not enough, 

counsel should have produced a non-existent toxicology report. He further 

surveillance tape was altered. Also without proof, he alleges that his trial 

former lawyer. Without any supporting proof, he claims that the video 

was captured on videotape shown to jurors. Despite the overwhelming 

evidence against him, DEFENDANT now blames his conviction on his 

"DEFENDANT") stabbed another individual 13 times in a bar. The event 

really believe this?" In this case, Michael Williams (hereafter 

Sometimes when we sit in PCRA Court, we silently wonder: "Can he 

OPINION BY CHARLES, J., June 28, 2016 

Elizabeth Judd, Esquire For Michael Williams 

Pier Hess, Esquire For Commonwealth of Pennsylvania 

DISTRICT ATTORNEY'S OFFICE 

APPEARANCES 

MICHAEL WILLIAMS 

v. 

COMMONWEAL TH OF NO. CP-38-CR-414-2014 

PENNSYLVANIA 

[~:~:~=o r~ r:. :o 

CLE:-::: Or C~jr:,s 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY::3A .. : ... PA 

PENNSYLVANIA ~:~S ~~.! 2 8 -n ~ (JQ 

CRIMINAL DIVISION 

Circulated 05/22/2017 01:49 PM
2 

1 We use the word "unfortunately" because an extraordinary amount of judicial resources were expended to address 

DEFENDANT's frivolous arguments. A taxpayer-funded lawyer was appointed for DEFENDANT and that lawyer 

spent hours preparing for the PCRA Hearing. The Sheriff of Lebanon County was required to transport 

DEFENDANT from his state corrections institution home to Lebanon County for the hearing. One-half day of 

precious court time was allotted for DEFENDANT's PCRA Hearing. At some point, a transcript of that hearing will 

have to be prepared at taxpayer expense. While there are times when defendants possess legitimate PCRA 

arguments and the expenditure of resources on those arguments is essential to the process of justice, this is not one 

of those circumstances. 

many verbal arguments between DEFENDANT and VICTIM. (N.T. 9) 

customer at BAR. (N.T. 9). Prior to February 15, 2015, SMITH observed 

DEFENDANT. (N.T. 8). Patrick Embry (hereafter "VICTIM") was a 

Lori Smith (hereafter "SMITH") and Melissa Eiler (hereafter "EILER") 

were employed as bartenders at BAR. (N.T. 8). EILER's boyfriend was 

by BAR. 

Much of the incident was captured on a video recording system maintained 

on February 15, 2014 at approximately 11:45 p.m. inside the Liberty Bar 

(hereafter "BAR") located in the City of Lebanon, Pennsylvania. (N.T. 79). 

DEFENDANT's charges arise as a result of an incident that occurred 

I. FACTS 

be denying all of DEFENDANT's PCRA issues. 

are required to outline in more detail within the body of this Opinion, we will 

suffering from self-serving delusions. For reasons that we unfortunately1 

PCRA Hearing, the more we became convinced that DEFENDANT was 

The more we listened to testimony at the time of the June 20, 2016 

fingerprints. 

it was verified by use of name, date of birth, Social Security Number and 
3 

On the evening of February 15, 2014, both SMITH and EILER were 

working at BAR. EILER finished work at 9:00 p.m. EILER stayed in BAR 

after her shift had ended because DEFENDANT was there. They were 

both drinking. (N.T. 10). DEFENDANT and EILER left BAR but 

DEFENDANT returned approximately 45 minutes later. When 

DEFENDANT entered BAR the second time, he was talking on his cell 

phone. He sounded angry and was speaking loudly. DEFENDANT again 

left BAR. (N.T. 10-11). VICTIM came into BAR approximately one hour 

after DEFENDANT had left BAR the second time. (N. T. 11) 

About one hour after the time VICTIM entered the Bar, SMITH 

noticed DEFENDANT outside BAR. SMITH noticed that DEFENDANT was 

walking very fast and she saw him stick something silver-ish into his 

jacket. At the time, VICTIM was sitting in the back part of BAR in the 

poolroom area drinking alcohol. (N.T. 12-13). SMITH did not see any 

signs that VICTIM was intoxicated. (N.T. 13). 

Upon observing DEFENDANT, SMITH called 911. She was going to 

alert VICTIM that "it didn't look good" but was unable to do so. (N.T. 13). 

SMITH observed DEFENDANT enter BAR and approach VICTIM. She 

initially did not see any weapon. (N.T. 14). When DEFENDANT 

approached VICTIMr SMITH saw DEFENDANT pull a large knife out and 

hit VICTIM on the head a couple of times. (N.T. 15). SMITH testified that 

this knife was not the same type of knife that DEFENDANT used quite 

frequently to punch a hole in the top of his can of beer. (N.T. 22). At no 
4 

point during the evening did SMITH notice VICTIM with a weapon, nor did 

she hear anyone threaten DEFENDANT. (N. T. · 23). 

A fight broke out between DEFENDANT and VICTIM in the foyer of 

BAR. The fight then moved to the poolroom. (N.T. 15-16). SMITH was 

unable to watch the entire incident because it was "bloody and horrible." 

(N.T. 15). SMITH did witness the end of the fight. She observed 

DEFENDANT with the knife. She also saw VICTIM choking DEFENDANT. 

When VICTIM got a chance to get away, he got up and put his hoodie up 

and walked out the door. VICTIM was bleeding very heavily. (N.T. 16- 

17). SMITH stated that during this entire incident, she was on the phone 

with 911. (N.T. 16). 

VICTIM testified that he received a phone call from El LER indicating 

that DEFENDANT was looking for him. (N.T. 39). While VICTIM was at 

BAR sitting at a table in the foyer area, he saw DEFENDANT walking 

toward him. (N.T. 39-40). VICTIM observed DEFENDANT walking very 

fast. At some point VICTIM saw DEFENDANT reach into his coat for what 

he believed may have been a weapon. Because VICTIM did not have a 

weapon, he tried to defend himself with his hands and body. (N.T. 40-41). 

VICTIM only realized that he was actually being attacked with a knife when 

he felt blood running down his head. (N.T. 41 ). VICTIM further stated that 

he was choking DEFENDANT and that when he felt DEFENDANT go limp, 

he dropped him, wiped the blood from his eyes, put up his hood and walked 

out of BAR. (N.T. 42; 48). 
5 

was bleeding profusely from his head at which time he had VICTIM sit 

Officer Allen was able to speak with him. Officer Allen noticed that VICTIM 

VICTIM realized that Officer Allen was a police officer, he relaxed and 

the building walking west on Mifflin Street. (N.T. 79). Upon arrival at the 

location of BAR, Officer Allen approached VICTIM and yelled out to him. 

VICTIM stopped, turned around, and was in a fighting stance. Once 

On February 15, 2014, Officers John Allen and Brandt Zimmerman 

of the Lebanon City Police Department were dispatched to BAR for a fight 

involving a knife. (N.T. 79). Officer Allen was given a description of the 

victim as wearing a gray sweatshirt and was told that he was outside of 

Exh. 6A - 6E). 

had cuts on his back, and cuts on both sides of his shoulders. (N.T. 52; 

addition to the multiple cuts to the head, and the cuts on his legs, VICTIM 

"chopping at my leg" which resulted in three deep cuts. (N.T. 49). In 

the fact that while he was chocking DEFENDANT, DEFENDANT was 

body. VICTIM stated that the blood on the inside of his pants was due to 

Upon arrival at the hospital, VICTIM's clothing was pretty much 

soaked by blood. Hospital staff needed to cut the clothing off of VI CTI M's 

DEFENDANT was the person who had assaulted him. (N.T. 75). 

was responsible for injuring him. Eventually, VICTIM told police that 

When the police arrived, VICTIM was not very happy that they 

became involved. Although VICTIM did allow police to call an ambulance 

and get him medical treatment, he did not initially want to talk about who 

- .. 
6 

down. (N.T. 80). Officer Allen testified that the blood was pooling around 

VICTIM's feet. He also observed full depth wound cuts to VICTIM's leg. 

In fact, he was able to see tissue and possibly joints or bone matter inside. 

(N.T. 81 ). Officer Allen immediately requested an ambulance to be sent 

to the location. (N.T. 81). 

Officer Allen spoke with VICTIM briefly. VICTIM related that there 

was an individual by the name of Michael who came into BAR and initiated 

a fight with him. VICTIM further told Officer Allen that the assailant 

possessed a knife and that he vigorously defended himself. (N.T. 82). 

After VICTIM was transported to the hospital, Officer Allen entered 

the BAR. He spoke with SMITH. SMITH told Officer Allen that she 

observed DEFENDANT cross the street, enter BAR, and approach VICTIM 

and that the fig ht then began. (N. T. 83). She also informed Officer Allen 

that EILER was a bartender at BAR and that when VICTIM spoke with 

EILER, DEFENDANT did not like that. (N.T. 83). 

Officer Allen photographed blood droplets at the crime scene. Given 

Officer Allen's training and experience, he determined that the droplets of 

blood were fresh. (N.T. 85). The photographs of the blood droplets 

depicted blood in the area of the foyer between the poolroom and the bar, 

on the wall in the foyer, and on the floor which is where the assault at one 

point moved to. (N.T. 85). 

Officer Zimmerman also spoke with SMITH. SMITH indicated that 

DEFENDANT was still inside BAR. Officer Zimmerman identified 
7 

DEFENDANT as a black male with a black knit cap on and a black jacket. 

(N.T. 100). Officer Zimmerman located DEFENDANT inside BAR in the 

corner of the room, concealing the knife. He stated that DEFENDANT was 

trying place the knife in a holster tied to the inside of his jacket. (N.T. 

102). Officer Zimmerman was able to conduct a search of DEFENDANT. 

He retrieved two knives on DEFENDANT's person and then took 

DEFENDANT into custody. (N.T. 101). 

When Officer Zimmerman arrested DEFENDANT, DEFENDANT 

stated that VICTIM was "talking trash on his girl" or something along those 

lines. He also stated that he did not want matters to progress as they did. 

(N.T. 103). Officer Zimmerman did not see any gushing open wounds or 

anything like that on DEFENDANT. However, he did notice some blood on 

DEFENDANT'S hands. (N.T. 103). 

Officer Allen traveled to the Hershey Medical Center in order to 

follow up with VICTIM. He was able to retrieve VICTIM's clothing from the 

hospital. (N.T. 86). He was also able to speak with VICTIM who told him 

that the fight was between him and DEFENDANT and that he had received 

a text message from EILER stating that DEFENDANT was looking for him. 

(N.T. 87). VICTIM stated to Officer Allen that DEFENDANT was 

"controlling and possessive" with respect to EILER. Officer Al'en was also 

able to obtain VICTIM's medical records. (N.T. 87). 

Because of past problems, BAR maintained a video surveillance 

system. Office Zimmerman retrieved the tape recording created by this 
8 

video surveillance system on the night in question. (N.T. 103). Tapes 

depicting the events in question from two different angles were viewed by 

the jury at trial. The video clearly depicted that DEFENDANT was the initial 

aggressor. However, VICTIM actually appeared to "win" the fight. While 

VICTIM and DEFENDANT were struggling together, VICTIM landed many 

blows upon DEFENDANT. However, VICTIM did not possess a weapon. 

The video surveillance images clearly displayed DEFENDANT using the 

knife that he brought into BAR. The surveillance video also depicted 

bleeding wounds inflicted by DEFENDANT's slashing and stabbing actions. 

(N.T. 45-48; Exh. 3) 

Officer Patrick McKinney was the supervising officer on the evening 

of the incident interviewed DEFENDANT. DEFENDANT acknowledged that 

he knew VICTIM. He also indicated that at one point in time, the two were 

friends. DEFENDANT further stated that he and VICTIM had a falling out 

over EILER. (N.T. 111). DEFENDANT told Officer McKinney that he called 

EILER prior to going to BAR and she confirmed that VI :TIM was there. 

(N.T. 112). Prior to leaving BAR the first time, DEFENDANT told Officer 

McKinney that he and VICTIM had words. DEFENDANT stated when he left 

BAR, he went to Gary's Sports Bar. He then returned to BAR because he 

needed to purchase cigarettes. Officer McKinney did not believe the 

statement about needing to buy cigarettes as there were many other places 

to purchase cigarettes, including Gary's Sports Bar. (N. T 113). 
9 

II. PROCEDURAL BACKGROUND 

Charges were filed against DEFENDANT on February 16, 2014. The 

most serious offense alleged was Attempted Homicide. All of the charges 

stemmed from the stabbing incident that occurred within the Liberty Bar on 

February 15, 2014. 

When Officer McKinney questioned DEFENDANT about some of the 

issues he had with DEFENDANT's statements, DEFENDANT became very 

emotional. He sobbed and explained how he felt the incident evolved into 

what it did. DEFENDANT stated that he wanted the issue between him and 

VICTIM to be over once and for all. In fact, Officer McKinney testified that 

DEFENDANT's verbatim statement was "[DEFENDANT] wanted to end it." 

DEFENDANT was very vague in his description of the assault itself. He 

stated that he entered BAR, VICTIM stood up and the two came together. 

(N.T. 114). DEFENDANT did acknowledge that he went into BAR with his 

knife out. (N.T. 115). 

When questioned about the knife found on his person, DEFENDANT 

stated that he typically carried a smaller knife which he used to open beer 

cans. (N.T. 116). He stated that he used the larger knife for protection 

when he would go out at night. (N.T. 146). Officer McKinney observed 

blood on the DEFENDANT's shoes, his shirt, his face and his hands. (N.T. 

116). At no point during the interview did DEFENDANT complain of any 

injury or pain, nor did he ask to go to the hospital or to seek medical 

treatment. (N.T. 119). 
10 

2 Because we mistakenly believed that DEFENDANT had filed an Appeal, we did not take any immediate action 

regarding the pro se documents that he filed. 

DEFENDANT filed numerous self-styled documents, including one entitled 

"Motion to Appoint New Counsel for PCRA and Appeal. "2 

appeal our decision. He did not do so. However, in June of 2015, 

him. On April 9, 2015, we issued an Order denying DEFENDANT's PostSentence Motions. We reminded DEFENDANT that he had 30 days to 

On November 13, 2014, DEFENDANT filed timely Post-Sentence 

Motions seeking to challenge the weight and sufficiency of evidence against 

aggregate sentence of 11 % to 23 years of imprisonment. 

God the victim would have been killed." We ultimately imposed an 

whom he had prior problems." We also concluded: "But for the grace of 

as "marching into the bar with the mission of confronting an individual with 

depicted the altercation within the Liberty Bar. We described DEFENDANT 

that included one prior conviction for Assault with a Deadly Weapon. In our 

Sentencing Order, we also referenced the surveillance videotape that 

this Court noted DEFENDANT's significant prior record from North Carolina 

DEFENDANT was sentenced on October 29, 2014. At sentencing, 

deadly weapon during the course of committing the assault. 

Assault. In addition, the jury determined that DEFENDANT employed a 

charge, but found him guilty of all other counts, including Aggravated 

August 6, 2014. The jury acquitted DEFENDANT of the Attempted Homicide 

of court. After a full day of testimony, a jury rendered a split verdict on 

DEFENDANT's case proceeded to trial during the August 2014 term 

·-.... .. 
11 

On December 10, 2015, DEFENDANT again filed numerous 

documents. In response, .we issued a Court Order on December 23, 2015 

advising DEFENDANT of his right to file a PCRA Petition within one year 

following the date on which his conviction was made final. On January 12, 

2016, DEFENDANT filed his Post-Conviction Relief Petition. VVe appointed 

Attorney Melissa Montgomery to represent DEFENDANT. Attorney 

Montgomery filed an Amended PCRA Petition on April 5, 2016. Thereafter, 

we scheduled a hearing for June 20, 2016. 

DEFENDANT was transported to Lebanon County and personally 

appeared at his June 20, 2016 PCRA Hearing. As is our practice in PCRA 

cases, we asked Attorney Montgomery to outline on the record and in the 

presence of her client all of the issues that were proposed to be litigated. 

Attorney Montgomery outlined the following issues: 

(1) DEFENDANT's trial counsel failed to object to leading questions 

asked during the course of trial. 

(2) DEFENDANT's trial counsel failed to object to questions at trial 

seeking to elicit hearsay responses. 

(3) Trial counsel failed to cross examine Lori Smith regarding 

"contradictions on the video." 

(4) Trial counsel was ineffective for failing to present VICTIM's toxicology 

reports. 
12 

Ill. LEGAL PRINCIPLES 

The PCRA provides for an action by which innocent persons convicted 

of crimes that they did not commit and persons serving illegal sentences 

can obtain relief. 42 Pa.C.S. § 9542. The PCRA is the exclusive method 

by which collateral relief may be obtained in Pennsylvania. 

Commonwealth v. Chester, 733 A.2d 1242, 1250 (Pa. 1999). To be 

eligible for relief under the PCRA, a defendant must prove the following 

elements by a preponderance of the evidence: ( 1) He must prove that he 

has been convicted of a crime under the laws of this Commonwealth and 

that he is serving a sentence of imprisonment, probation or parole for a 

crime; (2) he must prove that the conviction resulted from one of the 

enumerated errors listed in § 9543(a)(2); and (3) he must prove that the 

allegation of error has not been previously litigated or waived. Finally, he 

must prove that the failure to litigate the issue prior to or during trial could 

(5) The District Attorney committed prosecutorial misconduct by advising 

Patrick Embry where DEFENDANT's knife was located inside his 

house. 

(6) Trial counsel was ineffective for failing to prove that four charges 

contained on DEFENDANT's prior record sheet were not actually 

committed by him. 

We received testimony regarding all of the above issues. VVe issue this 

Opinion today in order to reject DEFENDANT's various claims. 
13 

not have been the result of any rational, strategic or tactical decision by 

counsel. 42 Pa.C.S. § 9543(a). 

Trial counsel will always be presumed effective, and the Defendant 

bears the burden of proving otherwise. Commonwealth v. Lewis, 708 A.2d 

497, 500 (Pa.Super. 1988) (citing Commonwealth v. Williams, 570 A.2d 

75, 81 (Pa. 1990)). In determining whether counsel rendered ineffective 

assistance, the court must first determine whether the issue underlying the 

claim of ineffectiveness is of arguable merit. Commonwealth v. DiNicola, 

751 A.2d 197, 198 (Pa.Super. 2000) (citing Commonwealth v. Johnson, 

588 A.2d 1303, 1305 (Pa. 1991)). If the claim is without arguable merit, 

the Court's inquiry ends, because counsel cannot be deemed ineffective for 

failing to pursue a meritless issue. DiNicola, 751 A.2d at 198. 

If a defendant's underlying claim is of arguable merit, we must 

examine the action chosen by trial counsel in order to ascertain if that 

action was designed to effectuate the Defendant's interest. Id. The fact 

that trial counsel's strategy may not ultimately have led to an acquittal does 

not render the strategy legally deficient. Commonwealth v. Spatz, 896 

A.2d 1191, 1235 (Pa. 2006). The Defendant must establish that but for 

counsel's deficient performance, the result of his trial would likely have 

been different. DiNicola, 751 A.2d at 198. 
14 

Our rules of evidence vest the trial court with the authority to 

determine the admissibility of evidence as well as to control the 

scope of examination ... Appellate review of the court's rulings 

under these rules is limited to determining whether the trial 

judge abused his discretion ... As it applies to rulings on the 

evidence, this standard requires not only technical error but 

also demonstrated harm; 'evidentiary rulings which should not 

affect the verdict will not provide a basis for disturbing the jury's 

judgment.' 

(Pa.Super. 1984). As our Superior Court has noted: 

Judge enjoys wide discretion. Commonwealth v. Bell, 476 A.2d 439 

With respect to decisions involving admission of evidence, a Trial 

different." Commonwealth v. Polston, surpa. At 677. 

is a reasonable probability that the outcome [of trial] would have been 

he was 'prejudiced' by the attorney's decisions. 'Prejudice' can be 

described as whether, but for the arguably ineffective act or omission, there 

A.2d 669 (Pa.Super. 1992). Stated differently, "Appellant must prove that 

that its omission prejudiced the Defendant and was not based upon any 

reasonable tactic or strategy. See, e.g. Commonwealth v. Polston, 616 

attorney's failure to pursue evidence objections, the Defendant must 

establish not only that a proper objection would have succeeded, but also 

A. Potential Evidence Obiections 

We begin with recognition that "the rig ht to a fair trial is not... the right 

to a perfect trial. .. " Commonwealth v. Pittman, 466 A.2d 1370, 1376 

(Pa.Super. 1983), citing Commonwealth v. McQuaid, 417 A.2d 1210 

(Pa.Super. 1980). When ineffectiveness is alleged as a result of an 

IV. DISCUSSION 
15 

With respect to alleged ineffectiveness for failing to proffer a hearsay 

objection, our Commonwealth's highest court has declared "that such 

Wharton's Criminal Evidence, Section 8: 15, Leading Questions. 

A question is leading when it suggests the answer desired. 

However, questions may reference a particular fact or topic of 

discussion without being misleading. A question is not leading 

merely because it may be answered "yes" or "no." Leading 

questions are permissible on cross-examination, but generally 

not on direct examination. Leading questions on direct 

examination are permissible, however, when the witness is 

deficient in memory, when the witness is called to contradict 

another, or when such a mode of questioning is consistent with 

a fair trial, when the witness is not familiar with the English 

language, speaks · English imperfectly, understands the 

language with difficulty, has a limited vocabulary, or is old, 

infirm or difficult to understand; when the witness is a child 

who is not accustomed to court proceedings, or a person who 

is uneducated, unsophisticated or mentally disabled; or when 

the witness is hesitant, evasive, reluctant, adverse or hostile. 

Leading questions, calculated to elicit testimony that is merely 

introductory or preliminary to material evidence, are also 

permissible. 

by a leading criminal law commentator: 

examination are improper, nothing could be further from the truth. As noted 

novice practitioners perceive that all leading questions on direct 

Commonwealth v. Welton, 2014 WL 10987061 (Jan. 28, 2014), citing 

Commonwealth v. Bell, 476 A.2d 439, 451 (Pa.Super. 1984). While many 

leading questions will not be reversed absent an abuse of its discretion." 

discretion of the trial court and a court's tolerance or intolerance of the 

With respect to leading questions, our Superior Court has recently 

stated: "In modern practice, the use of leading questions lies within the 

Id. at 925 (citations omitted). 

......... 
16 

claims made in a vacuum cannot provide a basis for relief." 

Commonwealth v. Cox, 728 A.2d 923, 933 (Pa. 1999). If the 

Commonwealth could have laid a sufficient foundation for the admission of 

such evidence had a timely objection been made, counsel cannot be 

deemed ineffective for failing to proffer the objection. Commonwealth v. 

Cox, supra. Moreover, no attorney has a duty to object to hearsay for which 

an exception to the hearsay rule exists. See, Pa. R. Ev. 803. Similarly, 

counsel cannot not be ineffective for failing to object to hearsay evidence 

that was irrelevant or non-prejudicial. Commonwealth v. Sam, 635 A.2d 

603 (Pa. 1993). On the other hand, where counsel effectively permits the 

Commonwealth to prove its entire case by hearsay, and where the 

cumulative effect of that hearsay evidence created prejudice, a defendant 

could be entitled to a fair trial. See Commonwealth v. Seltzer, 437 A.2d 

988 (Pa.Super. 1981 ). 

With all of the above legal principles in mind, we will now turn to the 

specific complaints proffered by DEFENDANT. 

(1) Transcript Page 20 - Lines 5-10 

Within the passage found on page 20, the prosecutor employed 

leading questions to ask the Liberty Bar owner about the physical layout of 

the bar. While the questions asked were clearly leading, the information 

sought was neither challenged nor of critical import to DEFENDANT's claim 

of self-defense. We view the information as preliminary and undisputed. 

As a result, leading questions are permitted to elicit such information. Had 
17 

girlfriend wherein she said "Mikes looking for you." This was evidence was 

(3) Transcript Page 39 - Lines 3-7 

Within this passage of testimony, the Commonwealth elicited 

testimony that VICTIM received a telephone call from DEFENDANT's 

what was depicted in still photographs. 

failing to object to the prosecutor's use of leading questions to describe 

ask her questions in a non-leading fashion. Even had trial counsel lodged 

a leading question objection, the jury would nevertheless have heard the 

same information. Thus.' trial counsel cannot be deemed ineffective for 

been lodged and sustained. All the prosecutor would have had to do is requestions could have easily been cured by the prosecutor had an objection 

actual stabbing incident. More important, the leading nature of the 

During this passage, the prosecutor clearly asked leading questions. 

However, all of the questions were preliminary to the description of the 

to the witness. 

questions, she was showing still photographs from the surveillance video 

between DEFENDANT and VICTIM began. As the prosecutor was asking 

pointed out where the witness and VICTIM were located and where the fight 

what the jury would observe on the surveillance videotape. The prosecutor 

Within this passage, the prosecutor attempted to "set the stage" for 

(2) Transcript, Page 21 - Lines 1-1 O; 14-25 and 

Page 22 - Lines 1-3 

counsel cannot be deemed ineffective for failing to proffer the objection. 

an objection been made at trial, we would have overruled it. Therefore, 
18 

3 It is not as though the victim claimed that DEFENDANT's girlfriend stated something to the effect: "Mike is 

looking for you because he plans to stab you." 

(N.T. 46). This passage could not possibly have prejudiced DEFENDANT 

to the extent that PCRA relief should be granted. 

A. The knife. 

Q. Now. again here in his left hand raised up, what's in his 

hand? 

the question in a non-leading manner: 

do not view this question. _as leading simply because it could be answered 

with a "yes" or "no." More important, the prosecutor immediately re-asked 

leading question: "This object here in his left hand, is that the knife?" We 

DEFENDANT argues that his attorney should have objected to the 

evidence was not prejudicial; its impact was clearly peripheral and could 

not possibly have affected the outcome of DEFENDANT's trial.3 

DEFENDANT's counsel could not be deemed ineffective for failing to object 

to this passage of testimony. 

(4) Transcript Page 46 - Lines 1-2 

hearsay rule. See Pa.R.Ev. 803(3). Moreover, the admission of this 

such, the evidence was admissible under the state of mind exception to the 

occurred between VICTIM and DEFENDANT several minutes later. As 

was presented to help explain VICTIM's state of mind when a confrontation 

not presented by the Commonwealth for the truth of the matter asserted; it 
19 

During her entire cross examination, trial counsel's primary objective 

was to paint VICTIM as someone who was flippant and easy to anger. 

Viewed with in the context of this legitimate trial strategy, the entirety of 

counsel's cross examination was actually quite effective, and counsel was 

able to use VICTIM's unsolicited statement about DEFENDANT's daughter 

to her advantage. We do not view the passage on page 72 to be prejudicial 

to DEFENDANT. Accordingly, it cannot afford the basis for PCRA relief. 

(6) Transcript Pages 82-83 

During testimony of. Officer John Allen, the prosecutor elicited b rief 

testimony about what both VICTIM and Lori Smith said upon his arrival on 

the scene. During the testimony, the officer described VICl IM's state of 

(5) Transcript Page 72 - Line 14 

During cross examination, DEFENDANT's attorney asked the victim: 

"And for some reason now today you know that she went to the house with 

him to get a knife?" In response, VICTIM responded: "Yeah. Mike's 

daughter told me about it." (N. T. 72). 

There is no evidence that trial counsel intentionally sought to elicit a 

hearsay response by her question. Moreover, trial counsel actually 

exploited this answer by immediately pointing out to the jury tnat VICTIMls 

statement disclosed a detail that had never been disclosed previously. 

(N.T. 72). 
20 

5 Moreover, during cross examination, trial counsel attempted to impeach the veracity of both VICTIM and Ms. Smith. 

It could therefore be argued that the testimony presented through Officer Allen elicited prior consonant statements 

that would be admissible as an exception to the hearsay rule. See, e.g. .·. · · · · 

4 As such, it could be argued that VICTIM's statement was admissible as an excited utterance. 

for PCRA relief. 

information did not cause prejudice to DEFENDANT, we will deny his claim 

ultimate decision. Because we conclude that Officer Allen's hearsay 

Officer Allen's testimony could have or would have chanqed the jury's 

and given that the jury watched the video of the stabbing altercation, we 

have a hard time believing that the brief hearsay-laden exchange during 

hearsay. 5 More important, we question the import of the evidence that was 

introduced. Given that the jury heard directly from VICTIM and Lori Smith, 

been presented by the Commonwealth to support the introduction of such 

there also may have been additional foundation evidence that could have 

objection had it been lodged during Officer Allen's testimony. However, 

from what the jury had already heard. 

In the interest of candor, we very well may have sustained a hearsay 

information presented through Officer Allen was neither new nor different 

were subject to extensive cross examination by trial counsel. The 

DEFENDANT. However, both VICTIM and Lori Smith testified at trial and 

information that was directly relevant to the charges lodged against 

mind and physical condition; he was bleeding profusely as a result of 

multiple wounds. (N.T. 81-82).4 

The prosecutor's questioning of Officer Allen clearly elicited hearsay 
21 

(7) Transcript Page 103 - Lines 4~9 

Officer Brant Zimmerman was the first one to arrive at the Liberty Bar 

following the stabbing incident. During Officer Zimmerman's testimony, the 

prosecutor asked what was said to him upon arrival. Officer Zimmerman 

provided a three sentence response describing in broad strokes what Lori 

Smith said to him. 

Prosecutors are permitted to ask police officers about what they were 

told and what they confronted when arriving at a crime scene. The purpose 

of this evidence is to explain how the police officer responded. See, e.g. 

Commonwealth v. Dent, 837 A.2d 571 (Pa.Super. 2005). 

In addition, our anal.ysis with respect to the passage on page 103 is 

identical to our analysis with respect to the passage recorded on pages 82 

and 83. The brief testimony from Officer Zimmerman elicited to explain 

what happened upon his arrival at the scene of the crime was not lengthy, 

nor was it different from testimony that was provided directly from Lori 

Smith herself. Lori Smith testified and was subject to cross examination, 

and all of the information attested to by Officer Zimmerman was clearly 

depicted in the video of the event that the jury observed. Under these 

circumstances, the information presented was not prejudicial and trial 

counsel cannot be deemed ineffective for failing to challenge the 

introduction of hearsay through Officer Zimmerman. 
22 

B. Failure to Call Witnesses 

DEFENDANT argues that trial counsel was ineffective for failing to 

call EILER, Dawn Justiano, Java Pinson and Latoya Williams as witnesses. 

Of these individuals, only EILER testified at the PCRA Hearing. EILER 

acknowledged that she is DEFENDANT's long-term girlfriend. EILER stated 

that after the stabbing incident, VICTIM threatened DEFENDANT. 

DEFENDANT's trial .counsel testified that she was never given the 

names of Java Pinson or Latoya Williams. While she did hear the name 

Dawn Justiano, DEFENDANT was not able to afford trial counsel with either 

the address or phone number of Ms. Justiano. We find trial counsel's 

testimony regarding Justiano, Pinson and Williams to be cre.dible. None 

were "available" to trial counsel during DEFENDANT's trial. 

With respect to Melissa Eiler, trial counsel confirmed that 

DEFENDANT had provided her name. Trial counsel met with EILER prior 

to trial. She became concerned that EILER would present information that 

actually hurt DEFENDANT. EILER had said to trial counsel that VICTIM 

had made romantic entreaties toward her. Trial counsel was concerned 

that this information would have bolstered the Commonwealth's theory that 

DEFENDANT attacked VICTIM as a result of jealousy. Because of this fear, 

trial counsel chose not to call EILER. 

Based upon her testimony at the PCRA Hearing, we fail to perceive 

how EILER's testimony could possibly have benefited DEFENDANT. EILER 

was very clear that the threats made by VICTIM toward DEFENDANT 
23 

C. Failure to Cross Examine Lori Smith 

DEFENDANT argues that his trial counsel should have crossexamined Lori Smith with respect to what he characterized as 

"contradictions with the video evidence." At the PCRA Hearing, 

DEFENDANT could not provide specific details about how Ms. Smith should 

have been cross examined in a different manner. Moreover, when 

confronted about what was actually depicted on the video, DEFENDANT 

claimed that the video surveillance tape had actually been altered. 

Absolutely no credible information was presented at the PCRA 

Hearing that would corroborate DEFENDANT's selt-servtnq proclamations 

about alteration of the surveillance videotape. At trial, we watched the 

same video that was seen by the jury, and we listened to Ms. Smith's 

occurred after the stabbing incident and not before. Th6y thus were not 

relevant to bolster DEFENDANT's claim of self-defense. Moreover, we 

understand and agree with trial counsel's fear that the Commonwealth could 

have elicited information from EILER on cross-examination that would have 

been devastating to DEFENDANT. 

We reject all of DEFENDANT's PCRA claims relating to his so-called 

exculpatory witnesses. There is no proof that three of the witnesses were 

even available at the time of trial, and there is absolutely nothing that would 

indicate that any of the proffered witnesses would have impacted the 

outcome of DEFENDANT's trial. We will therefore deny DEFENDANT's 

witness-related PCRA claim. 

....... __ 
24 

6 In addition, trial counsel pointed out that she was able to elicit testimony about VlCTIM's consumption of alcohol 

on the night of the incident. Based upon the information that was elicited, trial counsel was able to proffer a credible 

closing argument that painted VICTIM as an intoxicated and out-of-control individual. Given the information that 

was presented, VICTIM's toxicology report, even if it had existed, would have been little more than cumulative. 

eliciting it at trial. 

information was through the prosecutor's office. He accuses the prosecutor 

of misconduct for planting· this information inside VIGTIM's head and then 

theorizes that the only way VICTIM could have come into poss ession of this 

kept his knife on a hook affixed to a wall within his home. DEFENDANT 

According to DEFENDANT, VICTIM testified at trial that DEFENDANT 

E. Prosecutorial Misconduct 

alone, DEFENDANT's PCRA claim regarding toxicology will be denied.6 

system. After much back and forth, even DEFENDANT's attorney was 

forced to concede that no such toxicology reports exist. For this reason 

attorney should be deemed ineffective for failing to present VI CTI M's 

toxicology report that revealed "massive amounts of drugs" in VIGTIM's 

At the time of the PGRA Hearing, DEFENDANT argued that his 

D. Toxicology Reports 

videotape evidence will therefore be denied. 

something he did not do. DEFENDANT's PCRA claims regarding the 

or inclination to alter the videotape in an effort to frame DEFENDANT for 

description of events. Nothing of substance was inconsistent. Moreover, 

there is no proof anywhere that either Ms. Smith or the police had the ability 
25 

F. Prior Criminal Record 

DEFENDANT acknowledged that he was convicted in North Carolina 

for Armed Robbery and Assault With A Deadly Weapon With Intent To Kill. 

He also did not dispute a multitude of past misdemeanor convictions. 

There are multiple problems with DEFENDANT's argument. First, 

there is no information that the prosecutor knew the whereabouts of 

DEFENDANT'S knife within his home. Second, there is no information that 

the prosecutor related this information to VICTIM. Third, we do not adopt 

DEFENDANT's theory that a prosecutor commits misconduct every time 

he/she tells one witness what another has said. Finally, and perhaps most 

important, the trial transcript is devoid of any testimony indicating where 

DEFENDANT kept a knife within his home. 

When confronted on cross examination with the above, DEFENDANT 

insisted that he remembered VICTIM describing the location of the knife. 

He then accused the court reporter of falsifying the transcript by eliminating 

that testimonial exchange. 

DEFENDANT's arguments pertaining to prosecutorial misconduct are 

ludicrous. There is no evidence that the prosecutor acted improperly, and 

there is no evidence that the court reporter falsified the transcript by 

omitting a portion of the testimonial exchange that occurred. If anything, 

DEFENDANT's prosecutorial misconduct claim illustrates the depth of his 

desperation. We cannot and will not give credence to that desperation. 
26 

7 We fail to perceive why this crime was even mentioned. DEFENDANT was acquitted orthis offense and it was 

not considered in calculating DEFENDANT's prior record score. 

counsel learned that the prior record had been verified by name, date of 

Trial counsel investigated the possibility of mistaken identity. When trial 

committing some of the North Carolina offenses that were on his record. 

DEFENDANT'S trial counsel acknowledged that her client denied 

maintained for the individual who had previously committed the crimes in 

North Carolina. 

date of birth, Social Security and fingerprints were all identical to the ones 

fingerprints. Ms. Zeigler testified that the prior criminal .ecord submitted 

to the Court was verified as belonging to DEFENDANT because his name, 

fingerprints on a "ten-printer," which is a device used to scan and compare 

birth and Social Security. In addition, Ms. Zeigler ran DEFENDANT's 

DEFENDANT's "R.A. P. sheet" by utilizing DEFEN DANT's full name, date of 

employed by the County of Lebanon to ascertain and verify the prior 

criminal records of a defendant. Ms. Zeigler testified that she obtained 

The Commonwealth presented evidence from Tonya Zeigler, who is 

(1) 12/13/90 - Armed Robbery 

(2) 12/20/90 - Attempted Sale of Cocaine 

(3) 10/7/91 - Larceny7 

(4) 5/3/2000 - Possession With Intent To Deliver A Controlled Substance. 

listed on his prior record sheet. The offenses DEFENDANT disputes are: 

However, he claims that he did not commit four felony offenses that were 
27 

8 In our Sentencing Order, we cited the fact that DEFENDANT had a prior criminal history for Assault Using A 

Deadly Weapon. DEFENDANT does not dispute having such a past criminal history. Therefore, the information 

set forth in our Sentencing Order is accurate even if one were to adopt DEFENDANT's argument regarding his prior 

record score. 

regarding the appropriateness of DEF ENDANT's sentence. 6 

characterization of being an RFEL would not have changed our opinion 

conduct. The difference between a prior record score of 5 and a 

was an appropriate sanction given his background and the nature of his 

When we sentenced DE FEN DANT, we believed that 10 to 20 years 

standard sentencing range. 

imposed on the Aggravated Assault charge would have fallen within 

5. Even with a prior record score of 5, the 10 year minimum sentence 

by DEFENDANT, he would have been classified with a prior record score of 

In comparison, if one were to eliminate the felony convictions challenged 

the Aggravated Assault charge fell within the standard sentencing range. 

offender. With such classification, the 10 to 20 year sentence imposed on 

whether DEFENDANT's challenge to his prior record score even mattered. 

According to Ms. Zeigler and the official Presentence lnvestlqatlon Report, 

DEFENDANT's prior record classified him as an RFEL - a repeat felony 

We agree with trial counsel's assessment. 

In addition, we took some time at the PCRA Hearing to question 

DEFENDANT was simply wrong with respect to his prior record score claim. 

birth, Social Security number and fingerprints, she concluded that 
28 

V. CONCLUSION 

The key piece of evidence in this case has always been the videotape 

that depicts the altercation between DEFENDANT and VICTIM. That 

videotape showed DEFENDANT repeatedly stabbing VICTIM. While other 

evidence was presented to provide context to the video, it was the video 

itself that formed the cornerstone of the Commonwealth's prosecution. 

Nothing at trial and nothing during the 2016 PCRA hearing has assailed the 

video or what it depicted. No matter how many straws DEFENDANT now 

attempts to grasp, the fact remains that he was caught on tape attacking 

and stabbing another man inside the Liberty Bar. It is DEFENDANT'S 

conduct and the videotape that recorded that conduct that lea to the jury's 

verdict... not the ineffectiveness of trial counsel. 

We categorically reject all of DEFENDANT's PCRA claims against his 

trial counsel. Given the overwhelming evidence, trial counsel accomplished 

much to prevent DEFENDANT from being convicted of Attempted Homicide. 

We certainly cannot and will not declare trial counsel's efforts on behalf of 

Like DEFENDANT's other PCRA arguments, we reject the one he has 

proffered regarding his prior record. We conclude that DEFENDANT's prior 

record score was calculated correctly. Even if it were not, the difference 

between the official prior record and DEFENDANT's claimed prior record 

would not have caused us to alter our sentence. For these reasons, 

DEFENDANT's PCRA claim regarding his prior record score will be denied. 
29 

DEFENDANT to be ineffective. Accordingly, DEFENDANT s PCRA Petition 

will be denied.