J-S23042-18

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MICHAEL ELLIOTT 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2606 EDA 2017

Appeal from the PCRA Order July 25, 2017

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

No(s): CP-51-CR-0005442-2010

BEFORE: SHOGAN, J., NICHOLS, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 12, 2018

Appellant, Michael Elliott, appeals pro se from the order entered in the 

Court of Common Pleas of Philadelphia County dismissing his first petition filed 

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

9546. Herein, Appellant contends he is entitled to a new trial based on trial 

counsel’s ineffective assistance in foregoing a pretrial motion to suppress his 

confession as the product of an illegal arrest, in interfering with his right to 

testify, and in failing to file a post-sentence motion raising a weight of the 

evidence challenge to the verdict. We affirm.

The PCRA court aptly relates the pertinent facts and procedural history 

of the case, as follows:

The factual background of this matter is set forth in the [trial 

court’s] Rule 1925(a) opinion filed in Appellant’s direct appeal as 

follows:
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These charges arose out of an incident that occurred 

on April 7, 2010, at approximately 2:00 a.m. Earlier 

that morning, the decedent, Rachel Marcelis 

(“Marcelis”) and her friend, Gina Fehr (“Fehr”) were 

sitting in Fehr’s car smoking marijuana, outside of Fat 

Pete’s Bar in Northeast Philadelphia. As they were 

smoking, Fehr’s boyfriend, David DiPersio (“DiPersio”) 

and Appellant came to the car and began chatting with 

Fehr and Marcelis. DiPersio and Appellant got into 

Fehr’s car and sat in the driver’s seat and passenger’s 

seat, respectively. Fehr then sat on DiPersio’s lap, 

while Marcelis sat leaning against the dashboard of 

the car on Appellant’s lap with the doors open. The 

four (4) individuals smoked marijuana and as they 

did, Appellant pulled out a gun. Fehr asked Appellant 

to put the gun away and Appellant stated that he was 

licensed to carry.

Appellant then removed the clip from the gun and the 

gun was fired. Marcelis was hit with one (1) bullet to 

the chest and immediately asked the others to call 9-

1-1. After seeing Marcelis was hit, Appellant got out 

of the car, causing Marcelis to fall into the street, and 

ran to his mother’s house at 6123 Hegerman Street in 

Wissinoming. Upon arriving at his mother’s house, 

Appellant went to the basement and changed his 

clothes. Appellant then came upstairs where he spoke 

with his mother before Police Officers Andre Hudgens 

(“Hudgens”) and Ashley Johnson (“Johnson”) arrived. 

Hudgens and Johnson questioned Appellant [at his 

mother’s home] regarding the incident . . . and then 

transported Appellant to the Homicide Unit.

Medics responded to the 9-1-1 call and Marcelis was 

transported to Aria Health – Frankford Campus. 

Marcelis was shocked three (3) times during transit 

and was given six (6) rounds of ACLS medication 

before being pronounced dead at 2:45 a.m.

Trial Court Opinion, filed November 27, 2013, at 2-3.

On January 17, 2013, following a jury trial before the Honorable 

Lillian H. Ransom, [Appellant] Michael Elliott was convicted of one 

count each of third-degree murder (18 Pa.C.S. § 2502(c)), 
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possessing a firearm without a license (18 Pa.C.S. § 6106), and 

carrying a firearm on a public street or public property in 

Philadelphia (18 Pa.C.S. § 6108). On March 5, 2013, Judge 

Ransom sentenced Appellant to an aggregate term of fifteen to 

thirty years’ incarceration. Appellant’s post-sentence motion was 

denied by operation of law on July 16, 2013.

Appellant subsequently filed an appeal on July 18, 2013. On 

December 15, 2014, the Superior Court affirmed Appellant’s 

judgment of sentence. The Supreme Court denied allocator on 

October 26, 2015. Appellant then filed a pro se petition, with an 

accompanying brief in support thereof (“Brief in Support of 

Petition”), under the PCRA on November 6, 2015. Stephen 

O’Hanlon, Esquire was appointed to represent Appellant on May 

16, 2016.

With Judge Ransom having been elevated to the Superior Court, 

this matter was assigned to [the Honorable Glenn B. Bronson] on 

November 11, 2016. Appellant subsequently requested to 

proceed pro se, and after a Grazier[1] hearing, the [PCRA court] 

permitted Appellant to do so. On May 26, 2017, after reviewing 

Appellant’s petition and the Commonwealth’s Motion to Dismiss, 

the [PCRA court] ruled that the claims set forth in Appellant’s 

petition were without merit. On that day, pursuant to 

Pa.R.Crim.P. 907, the [PCRA court] issued notice of its intent to 

dismiss the petition without a hearing (“907 Notice”). On July 25, 

2017, the [PCRA court] entered an order dismissing Appellant’s 

petition.

Appellant has now appealed the [PCRA court’s] dismissal of his 

petition, alleging that trial counsel was ineffective for: 1) failing to 

seek suppression of the inculpatory statement that Appellant 

made following his [purportedly] illegal arrest; 2) refusing to 

permit Appellant to testify based on incorrect and misleading 

factors; and 3) failing to challenge the weight of the evidence in a 

post-sentence motion, thereby waiving the issue on appeal. 

Statement of Matters Complained of Pursuant to Rule of Appellate 

Procedure 1925(b) (“Statement of Errors”) at ¶¶ 1-3.

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1 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (holding court must 

determine on record that indigent defendant wants to proceed pro se, to 

ensure waiver of counsel is knowing, intelligent and voluntary).
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PCRA Court Opinion, filed 10/5/17, at 1-3.

Appellant’s Statement of Questions Presented raises the following three 

questions for our review:

I. SHOULD THE INDICTMENT BE DISMISSED 

AGAINST THE APPELLANT AS A RESULT OF AN 

ILLEGAL ARREST WITHOUT PROBABLE CAUSE IN 

VIOLATION OF THE 4TH AMENDMENT TO THE 

UNITED STATES CONSTITUTION AND ARTICLE 1, 

SECTION 8 OF THE PENNSYLVANIA CONSTITUTION 

AND IS THE APPELLANT ENTITLED TO A NEW TRIAL 

BASED ON COUNSEL’S INEFFECTIVENESS FOR 

FAILING TO SEEK SUPPRESSION OF HIS 

INCULPATORY STATEMENT MADE AFTER HIS 

ILLEGAL ARREST?

II. IS THE APPELLANT ENTITLED TO A NEW TRIAL 

BASED ON TRIAL COUNSEL’S INEFFECTIVE 

ASSISTANCE IN REFUSING TO PERMIT HIM TO 

TESTIFY BASED ON INCORRECT FACTORS?

III. WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING 

TO FILE POST SENTENCE MOTIONS THEREBY 

WAIVING THE APPELLANT’S ARGUMENT AGAINST 

THE WEIGHT OF THE EVIDENCE ON APPEAL?

Appellant’s brief at 4-5.

This Court's standard of review regarding an 

order denying a petition under the PCRA is whether 

the determination of the PCRA court is supported by 

the evidence of record and is free of legal error. 

Commonwealth v. Halley, 582 Pa. 164, 870 A.2d 

795, 799 n. 2 (2005). The PCRA court's findings will 

not be disturbed unless there is no support for the 

findings in the certified record. Commonwealth v. 

Carr, 768 A.2d 1164, 1166 (Pa.Super. 2001).

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super.

2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007).
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[T]he right to an evidentiary hearing on a postconviction petition is not absolute. Commonwealth 

v. Jordan, 772 A.2d 1011, 1014 (Pa.Super. 2001). It

is within the PCRA court's discretion to decline to hold 

a hearing if the petitioner's claim is patently frivolous 

and has no support either in the record or other 

evidence. Id. It is the responsibility of the reviewing 

court on appeal to examine each issue raised in the 

PCRA petition in light of the record certified before it 

in order to determine if the PCRA court erred in its 

determination that there were no genuine issues of 

material fact in controversy and in denying relief 

without conducting an evidentiary hearing. 

Commonwealth v. Hardcastle, 549 Pa. 450, 454, 

701 A.2d 541, 542–543 (1997).

Id. at 882, quoting Commonwealth v. Khalifah, 852 A.2d 1238, 

1239–1240 (Pa.Super. 2004).

To prevail on a claim alleging counsel's ineffectiveness 

under the PCRA, Appellant must demonstrate (1) that 

the underlying claim is of arguable merit; (2) that 

counsel's course of conduct was without a reasonable 

basis designed to effectuate his client's interest; and 

(3) that he was prejudiced by counsel's 

ineffectiveness, i.e. there is a reasonable probability 

that but for the act or omission in question the 

outcome of the proceeding would have been different. 

Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 

326, 333 (1999); Commonwealth v. Douglas, 537 

Pa. 588, 645 A.2d 226, 230 (1994).

Commonwealth v. Bracey, 568 Pa. 264, 276, 795 A.2d 935, 

942 (2001).

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012).

In both Appellant’s Rule 1925(b) statement and his appellate brief, he 

first contends that counsel rendered ineffective assistance by failing to file a 

pretrial motion seeking suppression of his incriminating statement, as it was 
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the product of an illegal arrest effected without probable cause. Specifically, 

Appellant maintains that police officers impermissibly relied solely on an 

anonymous tip to locate his residence and arrest him.

It is undisputed that Appellant was subjected to a warrantless arrest at 

the conclusion of the officers’ questioning inside his home. Thus, the arresting 

officers were required to possess probable cause to justify that arrest. See

In Interest of O.A., 717 A.2d 490, 495 (Pa. 1998) (“In order to be 

constitutionally valid under the Fourth Amendment to the United States 

Constitution, a warrantless arrest must be supported by probable cause.”). 

This Court has summarized that:

Probable cause to arrest exists when the facts and circumstances 

within the police officer's knowledge and of which the officer has 

reasonably trustworthy information are sufficient in themselves to 

warrant a person of reasonable caution in the belief that an 

offense has been committed by the person to be arrested.

Probable cause justifying a warrantless arrest is determined by 

the totality of the circumstances.

Probable cause does not involve certainties, but rather the factual 

and practical considerations of everyday life on which reasonable 

and prudent men act. It is only the probability and not a prima 

facie showing of criminal activity that is a standard of probable 

cause. To this point on the quanta of evidence necessary to 

establish probable cause, the United States Supreme Court 

recently noted that finely tuned standards such as proof beyond a 

reasonable doubt or by a preponderance of the evidence, useful 

in formal trials, have no place in the probable-cause decision.

Commonwealth v. Dommel, 885 A.2d 998, 1002 (Pa. Super. 2005) 

(internal citations, quotation marks, and brackets omitted).
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In an attempt to advance his position that he was subjected to an illegal 

arrest, Appellant directs this Court to Terry2jurisprudence invalidating 

searches and seizures of incriminating evidence supported only upon an 

anonymous tip without independent police corroboration. See Appellant’s 

brief at 9 (discussing Commonwealth v. Wiley, 858 A.2d 1191 (Pa.Super. 

2004) (holding single anonymous tip alone insufficient to justify seizure; mere 

corroboration of suspect’s features with information from call did not create 

reasonable suspicion to allow immediate investigation through temporarily 

maintaining status quo)). Setting aside the fact that Appellant has, with this 

argument, conflated the reasonable suspicion standard applicable to 

investigatory detentions with the probable cause standard applicable to 

arrests,3 we find that the record belies Appellant’s underlying assertion that 

the officers relied solely on an anonymous tip to arrest him.

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2 Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). 

3 We have acknowledged the following approach to police/citizen encounters 

under both the Fourth Amendment and Article 1, Section 8: 

This Court has noted that there are three basic categories of 

interactions between citizens and the police. The first category, a 

mere encounter or request for information, does not need to be 

supported by any level of suspicion, and does not carry any official 

compulsion to stop or respond. The second category, an 

investigative detention, derives from Terry v. Ohio and its 

progeny: such a detention is lawful if supported by reasonable 

suspicion because, although it subjects a suspect to a stop and a 

period of detention, it does not involve such coercive conditions 

as to constitute the functional equivalent of an arrest. The final 
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category, the arrest or custodial detention, must be supported by 

probable cause.

Commonwealth v. Moyer, 954 A.2d 659, 663 (Pa.Super. 2008) (en banc) 

(quoting Commonwealth v. Smith, 575 Pa. 203, 836 A.2d 5, 10 (2003)).

Initially, we note Wiley is not only inapposite to the issue of whether officers 

arrested Appellant without probable cause, it is also factually distinguishable. 

In Wiley, an officer received a 9-1-1 dispatch relating an anonymous tip that 

a man entered a nearby barbershop with a gun in his waistband. The officer 

arrived at the barbershop one minute later with his gun drawn and 

immediately directed Wiley to raise his hands. The officer recovered the gun

from Wiley and arrested him. As noted above, this Court held the officer 

lacked reasonable suspicion to support the Terry search and seizure and 

required suppression of the handgun.

In contrast, investigating officers in the case sub judice used the anonymous 

tip to locate the residence to which Appellant fled, but once there, they did 

not present with a show of force as was done in Wiley. Instead, the officers 

knocked on the front door and received Appellant’s stepfather’s permission to 

enter. N.T. 1/15/13 at 78. The stepfather called everyone downstairs, and 

the officers, observing that Appellant matched the description given in the tip, 

asked Appellant how long he had been home that night, to which Appellant 

answered “ten minutes” and began to cry. N.T. at 79. Appellant then 

admitted he was in the vehicle when the shooting occurred but denied 

responsibility for the shooting. Id. Appellant also admitted to fleeing the 

scene once the victim was shot. Id. At this point, given the totality of 

circumstances known to the officers, including Appellant’s admissions, police 

arrested him.

The record establishes, therefore, that police were lawfully in Appellant’s 

mother’s home at the time they spoke with Appellant, as Appellant’s 

stepfather admitted them voluntarily. Cf. Commonwealth v. Gonzalez, 979 

A.2d 879, 886 (Pa.Super. 2009) (collecting cases holding Fourth Amendment 

recognizes valid warrantless entry and search of premises when police obtain 

voluntary consent of occupant). The record further supports the conclusion 

that the officers did not employ coercive measures in addressing Appellant. 

Appellant came downstairs at his stepfather’s request and voluntarily 

answered the officers’ first question, which asked how long he had been home, 

by breaking down in tears. He subsequently admitted to being in the car at 

the time of the shooting and fleeing immediately thereafter. As such, the 
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Contrary to Appellant’s argument, the officers had other information in 

addition to the anonymous tip to provide them with probable cause to arrest 

Appellant. The anonymous tip describing Appellant’s physical appearance 

enabled the officers to pursue an eyewitness’s lead to Appellant’s home, where 

they knocked on the door of the residence and asked permission to enter. 

Appellant’s stepfather, who was free to refuse the officers’ request, allowed 

the officers entry. From there, the grandfather called everyone downstairs, 

and the officers observed that Appellant fit the description given over the 

dispatch. 

Moreover, Appellant broke down in tears when asked how long he had 

been home, and he volunteered he was in the car when the shooting took 

place and fled the scene immediately thereafter. Only then did officers place 

him under arrest and bring him to the stationhouse for further questioning.

Therefore, the officers did not predicate their arrest solely on the 

anonymous tip, but had ample additional information corroborating that tip 

and pointing to Appellant as a key suspect in the victim’s shooting. 

Accordingly, as we agree with the PCRA court that the officers possessed 

probable cause to arrest Appellant, we discern no arguable merit with 

Appellant’s first ineffective assistance of counsel claim.

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totality of circumstances present in this case bears no relation to that present 

in either Wiley or other decisional law cited by Appellant on this issue.
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In his second ineffectiveness claim, Appellant charges trial counsel with 

refusing to permit him to testify on his own behalf. Specifically, Appellant 

alleges he advised counsel of his wish to tell the jury exactly what happened 

on that night, but counsel insisted that he not take the stand lest the 

Commonwealth impeach him with his prior crimen falsi record. Appellant 

asserts that he had no crimen falsi record, which rendered counsel’s advice 

erroneous and constitutionally ineffective.

A criminal defendant's decision whether to testify in his own defense or 

remain silent is a basic fundamental right grounded in both our national and 

Commonwealth's Constitutions. See U.S. Const. Amdt. 5; Pa. Const. Art. I, 

§ 9. Generally, a defendant cannot successfully claim ineffective assistance 

of counsel for failing to call him to testify after a defendant has voluntarily 

waived his right to testify in a colloquy, unless certain exceptions are 

established. Commonwealth v. Rigg, 84 A.3d 1080, 1086 (Pa.Super. 2014) 

(citing Commonwealth v. Peay, 806 A.2d 22, 29 (Pa.Super. 2002)); 

Commonwealth v. Schultz, 707 A.2d 513, 520 (Pa.Super. 1997).

In order to sustain a [PCRA] claim that counsel was ineffective for 

failing to advise the appellant of his rights in this regard, the 

appellant must demonstrate either that counsel interfered with his 

right to testify, or that counsel gave specific advice so 

unreasonable as to vitiate a knowing and intelligent decision to 

testify on his own behalf.

Commonwealth v. Nieves, 746 A.2d 1102, 1104 (Pa. 2000) (quoted by 

Commonwealth v. Michaud, 70 A.3d 862, 869 (Pa.Super. 2013)).
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The PCRA court rejected Appellant’s claim on two grounds. First, the 

court observed that counsel’s advice was correct, for Appellant’s prior 

conviction for the unauthorized use of a motor vehicle involved a crimen falsi

offense that may be admissible for impeachment purposes. See 

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1263 (Pa.Super. 2014) 

(holding 18 Pa.C.S. § 3928, unauthorized use of a motor vehicle is a crimen 

falsi offense). Second, the court conducted an extensive colloquy of Appellant 

on the issue where Appellant confirmed that, after lengthy consultation with 

trial counsel, it was his own decision not to testify. Appellant’s second 

ineffectiveness claim, therefore, is devoid of merit.

Finally, Appellant assails trial counsel for failing to file a post-trial motion 

challenging the weight of the evidence, thereby waiving the issue or purposes 

of direct appeal. “Nowhere in the testimony is [there] any evidence to show 

that the Appellant acted with any malice[,]” Appellant maintains. Appellant’s 

brief at 17. Counsel’s failure to file a post-sentence motion basing a weight 

of the evidence claim upon this argument prevented Appellant from presenting 

this meritorious claim, he contends.

By claiming the element of malice went unproven at trial, however, 

Appellant conflates his underlying weight of the evidence challenge with a 

sufficiency challenge. It is well-settled that “[a] challenge to the weight of the 

evidence is distinct from a challenge to the sufficiency of the evidence in that 

the former concedes that the Commonwealth has produced sufficient evidence 

of each element of the crime, “but questions which evidence is to be believed.” 
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Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa.Super. 2006)

(emphasis added). Here, Appellant does not argue that evidence suggesting 

the absence of malice was so clearly of greater weight than evidence of the 

presence of malice that the verdict of guilt shocks one’s sense of justice. 

Instead, he argues there was no evidence of malice, which asserts the distinct 

challenge that the Commonwealth failed to produce sufficient evidence in the 

case.4 As Appellant has, therefore, failed to advance his underlying weight of 

the evidence claim properly, we find it is without arguable merit and may not 

support his ineffective assistance of counsel claim.5

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/12/18

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4 Appellant previously advanced this very argument within the context of his 

sufficiency of the evidence challenge on direct appeal, to no avail.

5 The PCRA court denied Appellant’s weight of the evidence-based 

ineffectiveness claim for reasons expressed in the trial court’s Pa.R.A.P. 

1925(a) opinion addressing the merits of Appellant’s weight claim raised in his 

Rule 1925(b) statement. As we agree with the trial court’s merits-based 

analysis of Appellant’s weight claim, we, too, would reject Appellant’s claim

for the same reasons had Appellant presented an appropriate argument 

warranting merits review.