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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COUR T OF : PENNSYLVANIA : v. : : LONNELLE M. JOHNSON, JR., : : Appellant : No. 1429 WDA 2015

Appeal from the PCRA Order August 11, 2015 In the Court of Common Pleas of Allegheny County Criminal Division No(s): CP-02-CR-0011414-2009

BEFORE: BOWES, DUBOW, and MUSMANNO, JJ. MEMORANDUM BY DUBOW, J.: FILED OCTOBER 21, 2016 Appellant, Lonnelle M. Johnson, Jr., appeals the PC RA court’s Order dismissing without a hearing his first Petition und er the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541, et seq . For the reasons that follow,

we affirm. The trial court previously summarized the factual h istory of this case

as follows: Thomas Nguyen testified that he and his brother, Ho ang, were in the Hill District of Pittsburgh at approximately no on on June 26, 2009, dropping his brother’s baby off to the mother . Hoang[] was driving and Thomas was in the passenger’s seat while the vehicle was stopped on Bedford Avenue. As they wer e stopped there, a group of people, which included [Appellant ], waved toward Hoang. Hoang pulled the vehicle to the side of the road to talk to those individuals. One of the individua ls, later identified by [Thomas] as “Woozy” [a/k/a Daniel Wil liams], was speaking with [Hoang] through the driver’s side win dow. Two other individuals were also present outside the veh icle. WhileJ.S48020/16

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[Hoang] was talking with Woozy, another individual, later identified as [Appellant], jumped into the backseat of the car on the driver’s side, pointed a gun at Hoang and told him to “give it up.” Thomas took that to mean that he wanted them to give him anything of value that he and [Hoang] had. At this point, however, Hoang put the car into driv e and began to drive away. When he did this, [Appellant] said, “Don’t try it. I’ll shoot you.” Hoang stepped on the gas pedal. As soon as the car started moving, [Appellant] started shooting. Thomas heard at least three gunshots. The vehicle then crashed into a tree. Thomas blacked out for a few seconds. When he awok e, he did not see [Hoang] in the driver’s seat any longer. H e tried to get out, but his door would not open. He indicated tha t he noticed that he had been shot in the leg. He still saw the individual identified as Woozy standing near a building but di d not see the individual who had shot him. While he was at the hospital, the police came and s howed him photographs. He stated that he was able to speak t o the police and was not under the influence of drugs at that po int. He recalls the conversation he had with the police. He was shown several sets of photographs. He identified Woozy f rom one set and [Appellant] from another set of photographs. T homas identified [Appellant] in the [c]ourtroom and ident ified him as the individual who jumped into the back seat of the car, pointed the gun at him and [Hoang] and shot them. Daniel Williams (“Woozy”), also testified. He state d that he saw [] Hoang, drive up and wave[] at him to speak with him. [Williams] spoke with [Hoang] through the driver’s side door and noticed that [Hoang’s] brother was in the passenger seat. [Williams] stated that he talked to [Hoang] for a f ew minutes. While standing next to the driver’s window, [Willia ms] saw someone holding a gun jump into the back seat of th e car and say something to the two victims. [Williams] testi fied that [Hoang] drove off with the individual still in the backseat. The car travelled a short distance and then struck a tr ee. ... [Williams] said that the individual in the car got out and ran. He then saw [Hoang] get out of the car, put his hand t o his head and fall to the ground. Williams stated that he st ayed at the scene and was placed under arrest when the police s howed up. He stated that he provided a description of the ind ividual he sawJ.S48020/16

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but could not provide the name of the person. He a dmitted that he told them that he was afraid to identify that pe rson. On cross[-]examination, Williams testified that he knew [Appellant], and had known him for years. He state d that [Appellant] was not the individual who was in the b ackseat of the vehicle. Detective Bonzale Boose, with the City of Pittsburg h Homicide Division, testified that he interviewed Williams an d that Williams told him that while he was standing at the driver’s window talking with [Hoang], an individual walked up to hi s right side, opened the rear door on the driver’s side, and got in with a handgun pointed at the driver. He said the car pul led away and he heard several shots. The car then accelerated a few feet, turned and struck the tree, where it came to rest. He said he saw the individual get out of the car and run into the projects. He also said he saw the driver get out of the car a nd collapse to the ground. When Detective Boose asked him if he c ould identify the person he saw enter the car[], [Willia ms], according to Detective Boose, said “He could ID that individu al, but he will not ID an individual under any circumstances out of safety for himself and his family.” The Commonwealth also presented fingerprint evidenc e. Latent prints were obtained from [the] rear driver’s door and door frame, which was where both the surviving victim an d Williams said the assailant had entered the vehicle. Of the total of nine latent prints of value obtained from the [] vehicle , three were matched to [Appellant]. Two from the rear door mat ched [Appellant’s] left little finger and one matched hi s left middle finger. In addition, the Commonwealth presented testimony f rom Walter Lorenz, a forensic scientist from the Allegheny Cou nty Medical Examiner’s Division of Laboratories. Dr. Lorenz te stified that DNA samples were obtained from the exterior and int erior handles from the rear driver’s side door. Samples were also obtained from [Appellant] and the victim, Hoang Ngu yen. The comparison between the sample from the interior doo r handle and the samples from [Appellant] and the victim res ulted in Dr. Lorenz excluding both as significant contributors t o the DNA material obtained from the interior door handle. T he comparison between the DNA material obtained from the exterior handle and that from the victim and [Appellant], however, resu lted in theJ.S48020/16

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exclusion of the victim as being a possible contrib utor and the determination that the DNA from the door handle and from [Appellant] matched. The probability of such a mat ch was one in 1.3 billion among African-Americans. Trial Court Opinion, filed 11/18/11, at 4-9 (citati ons to the record omitted). Appellant was convicted after a jury trial of first -degree murder, aggravated assault, carrying a firearm without a li cense, and two counts of robbery. On October 25, 2010, the court sentenced him to a mandatory term of life imprisonment for the murder conviction , as well as a concurrent, aggregate term of 20 to 60 years’ incarceration for the remaining convictions. On July 11, 2012, this Court affirmed Appellant’s convictions, but vacated his Judgment of Sentence and remanded f or resentencing based upon the trial court’s failure to grant Appellant c redit for time served.

Commonwealth v. Johnson , No. 1937 WDA 2010, unpublished memorandum (Pa. Super. filed July 11, 2012). Appe llant was re-sentenced on May 5, 2013. On August 26, 2013, Appellant filed a timely pro se PCRA Petition. The PCRA court appointed counsel, who filed a Motion to Withdraw as Counsel with a “no-merit” letter pursuant to Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988), Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) ( en banc ). Shortly thereafter, PCRA counsel filed a Motion to Supplement Previous Motion to Withdraw. On June 30, 2014, the PCRA court filed a Notice of Intent to Dismiss Appellant’s PCRA Petition without a hearing pursuan t to Pennsylvania Rule ofJ.S48020/16

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Criminal Procedure 907. In response, Appellant fil ed an amended PCRA

Petition pro se . On August 11, 2015, after reviewing Appellant’s amended

pro se Petition, the PCRA court filed a Memorandum Opinion and Amended

Rule 907 Notice. On September 2, 2015, Appellant filed a timely appe al to this Court. The PCRA court did not direct Appellant to file a S tatement of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925( b), and Appellant did

not do so of his own accord. The PCRA court did no t file an Opinion pursuant to Pa.R.A.P. 1925(a). In his Brief to this Court, Appellant provides the following “Statement of Questions Presented”: 1. Whether the PCRA court erred in dismissing Appel lant’s PCRA Petition without holding an evidentiary hearing to determine whether trial counsel was ineffective? 2. Whether trial counsel provided and serviced Appe llant ineffective assistance when trial counsel failed to investigate and interview potential alibi exculpatory witnesses in support of Appellant’s actual innocence? 3. Whether [the] PCRA court erred in permitting PCR A counsel to withdraw when the language it used shows that PCRA counsel’s ‘no-merit’ lettered petition reveals that PCRA coun sel had limited its investigation and interview to just ‘one’ lonel y witness where PCRA counsel’s investigation was solely based and r elied upon review of previous transcripts of witness’s testimo ny that witness could not positively identified Appellant as the ac tual suspect? Appellant’s Brief at iv. We note at the outset that Appellant’s pro se Brief is comprised of a repetitive and rambling assertion of errors that do es not comply withJ.S48020/16

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Pa.R.A.P. 2118-2119. 1 Despite its significant flaws, we are able to dis cern from the discussion portion of the Brief two distin ct issues: (i) ineffective assistance of trial counsel for failing to investig ate and present four witnesses at trial; and (ii) a challenge to the den ial of the PCRA Petition without a hearing. When reviewing the propriety of an order granting o r denying PCRA relief, this Court is limited to determining whethe r the evidence of record supports the determination of the PCRA court, and w hether the ruling is free of legal error. Commonwealth v. Boyd , 923 A.2d 513, 515 (Pa. Super. 2007). We grant great deference to the findings of the PCRA court, and these findings will not be disturbed unless they ha ve no support in the

certified record. Commonwealth v. Wilson , 824 A.2d 331, 333 (Pa. Super. 2003). When the PCRA court denies a petitio n without an evidentiary hearing, we “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 conductin g an evidentiary hearing.”

1 The argument section of Appellant’s Brief contains three subsections with headings that do not match or otherwise correspond with the questions presented in the Statement of Questions Presented. See Appellant’s Brief at 3, 13, 16. Moreover, our review of Appellant’s Bri ef reveals that the headings, which subdivide his argument sections, be ar little relation to the arguments developed thereunder.J.S48020/16

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Commonwealth v. Khalifah , 852 A.2d 1238, 1240 (Pa. Super. 2004) (citation omitted).

Trial Counsel’s Failure to Call Potential Witnesses In his first issue, Appellant avers that trial coun sel was ineffective for failing to investigate, interview, and call four wi tnesses at trial. In analyzing claims of ineffective assistance of co unsel, we presume that trial counsel was effective unless the PCRA pe titioner proves otherwise.

Commonwealth v. Williams , 732 A.2d 1167, 1177 (Pa. 1999). In order to

succeed on a claim of ineffective assistance of cou nsel, Appellant must demonstrate (1) that the underlying claim is of arg uable merit; (2) that counsel’s performance lacked a reasonable basis; an d (3) that the ineffectiveness of counsel caused the appellant pre judice. Commonwealth

v. Fulton , 830 A.2d 567, 572 (Pa. 2003). Appellant bears th e burden of proving each of these elements, and his “failure to satisfy any prong of the ineffectiveness test requires rejection of the clai m of ineffectiveness.”

Commonwealth v. Daniels , 963 A.2d 409, 419 (Pa. 2009). It is well settled that a PCRA petitioner cannot pr evail on a claim of

trial counsel’s ineffectiveness for failure to call a witness unless the petitioner shows that: “(1) the witness existed; (2 ) the witness was available to testify for the defense; (3) counsel knew of, or should have known of, the existence of the witness; (4) the witness was willi ng to testify for the defense; and (5) the absence of the testimony of th e witness was soJ.S48020/16

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prejudicial as to have denied the defendant a fair trial.” Commonwealth v. Washington , 927 A.2d 586, 599 (Pa. 2007). To satisfy the pre judice prong of this analysis, a PCRA petitioner “must show how the uncalled witnesses’ testimony would have been beneficial under the circ umstances of the case.”

Commonwealth v. Gibson , 951 A.2d 1110, 1134 (Pa. 2008) (citations omitted).

Witness Andrew Davis Appellant avers that trial counsel was ineffective for failing to investigate and interview Andrew Davis (“Davis”). 2 This argument is without merit because, as explained by the PCRA court, tria l counsel did interview Davis and discovered that Davis’ testimony would no t have aided in Appellant’s defense: First, trial counsel did, in fact, secure an interv iew of Andrew Davis through his private investigator. The report from that interview was attached to the defendant's Motion to Supplement Previous Motion to Withdraw. Second, the report of that interview reveals that Mr. Davis would not have off ered testimony favorable to the defendant. He told the investigator that he could not identify any of the three individ uals he saw, including the person who shot the victim. His inabi lity to identify the assailants could not possibly have aided Mr. Jo hnson in his trial.

. . . Nowhere in this statement is Andrew Davis reported to have said anything that would have been exculpatory to the de fendant. It was the defendant's burden to proffer, in his Petit ion, facts

2 Davis was the only witness mentioned by Appellant in his initial pro se Petition.J.S48020/16

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which, if proven at a hearing, would establish his right to relief. Here, as he is alleging that trial counsel was inef fective for failing to present testimony from Andrew Davis, it was his burden to establish what Andrew Davis would have said if call ed as a witness and how that testimony would have changed t he outcome of the trial. He failed to meet that burden because all that Andrew Davis could have said is that he could not identify any of the men. He did not say, as the defendant se ems to suggest, that the defendant was not present. He sai d he could not identify any of the men present. Because Andre w Davis would not have offered any testimony helpful to the defendant, counsel was not ineffective in failing to present h im as a witness. Trial Court Memorandum Opinion and Amended Notice o f Intention to Dismiss, filed 8/11/15, at 1-3. Our review of the record supports the PCRA court’s analysis. Accordingly, we conclude that the PCRA court did no t err in determining that there were no genuine issues of material fact in co ntroversy, and that Appellant is not entitled to relief on this claim. Witnesses George Lyle and Daniel Williams Appellant next avers that trial counsel was ineffec tive for failing to call witness George Lyle (“Lyle”), who “if [he] had been called upon, would have testified truthfully that Appellant was with him on the day and at the time of the alleged shooting incident for which [Appellant] was wrongfully accused of” and failing to call Daniel Williams (“Williams” ). Appellant’s Brief at 8, 5. Contrary to Appellant’s assertion, both Lyle and Wi lliams testified at trial. Lyle, who testified on Appellant’s behalf, told the jury that Appellant was with him at the time of the murder. N.T., 7/28 /10, at 249-66. Williams, called as a witness for the Commonwealth, testified to seeing aJ.S48020/16

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man with a gun enter the victim’s vehicle, threaten him, and run from scene following the crash. N.T., 7/27/10, at 84-87. On cross-examination by trial counsel, Williams testified that he knew Appellant and that Appellant was not the man he saw running from the vehicle. Id. at 92. Accordingly, Appellant’s contention fails: trial counsel can har dly be deemed ineffective for failing to call witnesses who did, in fact, tes tify.

Witness Marcel Green Finally, Appellant avers that trial counsel was ine ffective for failing to call Marcel Green (“Green”) as a witness at trial. Appellant did not mention

Green in his initial pro se PCRA Petition, or in his counseled amended PCRA Petition. Moreover, his Brief to this Court contai ns no information regarding what testimony Appellant believes Green might have given had he been called at trial, or any of the other elements requi red under Washington , 927 A.2d at 599. Instead, Appellant’s only referen ce to, and entire argument regarding, Green is the following single s entence: “The dispositive

issue is whether trial counsel’s ineffectiveness fo r failure to investigate other potential exculpatory witnesses [ sic ]; Daniel Williams, Andrew Davis, and Marcel Green.” Appellant’s Brief at 5. Therefore, Appellant waived all claims regarding Green by failing to raise this claim belo w or develop it in his Brief

to this Court. See Pa.R.A.P. 302(a) (“Issues not raised in the lower c ourt

are waived and cannot be raised for the first time on appeal.”); Harkins v. Calumet Realty Co. , 614 A.2d 699, 703 (Pa. Super. 1992) (noting thatJ.S48020/16

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issues raised but not developed the argument sectio n of a brief will be deemed waived).

Denial of PCRA Petition Without a Hearing In his second and third argument sections, Appellan t avers, in substance, that the PCRA court erred in dismissing his Petition without a hearing. 3 We disagree. There is no absolute right to an ev identiary hearing on a PCRA petition, and the PCRA court may decline to hold a hearing if the claims are patently frivolous and without a trace o f support in the record.

Commonwealth v. Jordan , 772 A.2d 1011, 1014 (Pa. Super. 2001). In the instant case, as discussed supra , the claims raised by Appellant were either patently frivolous or never raised befo re the PCRA court. PCRA counsel, in a Motion to Supplement Previous Motion to Withdraw, provided the PCRA court with a copy of trial counsel’s witne ss interview report for Davis. Motion to Supplement Previous Motion to Wit hdraw, Exhibit A, filed

3 We note that the headings for these argument secti ons purport to raise other claims of error by the PCRA court and ineffec tiveness by trial counsel. None of these claims are developed in the argument that follows, however, and in substance both arguments aver that the PCRA court erred in dismissing Appellant’s claim without a hearing. To properly develop an issue for our review, Appellant bore the burden of ensuri ng that his argument section included citations to pertinent authorities as well as discussion and analysis of the authorities. See Pa.R.A.P. 2119(a); Commonwealth v. Hardy , 918 A.2d 766, 771 (Pa. Super. 2007) (“[I]t is an appellant’s duty to present arguments that are sufficiently developed f or our review. The brief must support the claims with pertinent discussion, with references to the record and with citations to legal authorities.” (c itations omitted)). Therefore, Appellant waived any claims suggested in his headings, where he failed to discuss them or develop them in the argum ents that follow.J.S48020/16

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6/16/14. That statement made it clear that counsel did, in fact, interview Davis and discovered that he had no exculpatory tes timony to offer. For Lyle and Williams, a review of the trial record was sufficient to show that both witnesses did in fact testify at trial. There fore, a hearing was not needed to further develop any of Appellant’s meritl ess claims regarding

these witnesses. Based on all of the foregoing, we conclude that the PCRA court did not err in dismissing Appellant’s Petition without a he aring. Accordingly, we affirm the PCRA court’s denial of Appellant’s Petit ion.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 10/21/2016