J-A06040-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SALMAR METTS

Appellant No. 764 EDA 2014

Appeal from the PCRA Order March 3, 2014

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0003292-2008

BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED MARCH 26, 2015

Appellant Salmar Metts appeals from the order entered in the 

Delaware County Court of Common Pleas which dismissed his petition 

seeking relief pursuant to the Post Conviction Relief Act (“PCRA”).1 We 

affirm.

The PCRA court sets forth the relevant facts of this appeal as follows:

This case arises from the shooting and death of 

Christopher Howell [“Victim”] on May 21, 2008. At 

approximately 5:30 pm that evening[,] [Victim] was on 

Weymouth Street in Darby Borough, Delaware County, 

with three other young men. The men were drinking 

alcohol and smoking marijuana. [Appellant] and three of 

his friends were also on Weymouth Street. An argument 

between [Appellant] and [Victim] began because [Victim] 

____________________________________________

1 42 Pa.C.S. §§ 9541-9546. 
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allegedly did not want [Appellant], who was a resident of 

Chester, on Weymouth Street where [Victim’s] friend lived. 

A witness, Rashaad Carroll, testified at trial that he was 

with [Victim]. Carroll testified that he intervened in the 

argument and escorted [Victim] away. Carroll also 

testified that no punches were thrown. Another witness 

who was a friend of [Appellant], Jabree Branch, 

corroborated this testimony at trial. The two groups 

subsequently parted ways. Later that evening at 

approximately 10:00 pm, both groups arrived back on 

Weymouth Street. 

Carroll testified that [Victim] was seated in Carroll’s vehicle 

near his home. [Appellant] and his friends arrived and 

stood by a fence near the car. [Victim] was looking at 

[Appellant] and words were exchanged between the two. 

[Victim] attempted to get out of the vehicle and Carroll 

tried to hold him back. [Victim] was partially out of the 

vehicle when [Appellant] pulled out a revolver and shot 

[Victim] from a distance of approximately three feet. 

[Victim] was hit and began running away from [Appellant]. 

[Appellant] then shot at [Victim] several more times. After 

shooting [Victim], [Appellant] and his friends ran away. 

Carroll testified that the following day he drove to the 

Darby Borough Police Department to speak with a 

detective regarding the shooting. Carroll identified 

[Appellant] as the shooter from a photo array. Carroll also 

provided police with a signed statement about the 

shooting. Carroll also testified that [Victim] never carried 

a gun and did not have a gun on him at the time that he 

was shot and killed by [Appellant]. That evening the police 

arrived at [Appellant’s] sister’s home and arrested 

[Appellant]. 

The Delaware County Medical Examiner, Dr. Frederick 

Hellman, also testified at trial. The Examiner testified that 

[Victim] died as a result of multiple gunshot wounds. One 

bullet wound was to the base of his neck having entered 

from the front and the other four wounds were inflicted to 

[Victim’s] back as he was running. Dr. Hellman concluded 

that the gunshot wounds were inflicted from a distance of 

more than a few feet away based upon the absence of 
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gunpowder particles on [Victim]. Tests upon [Victim] 

reflected that there was no indication that he had recently 

handled or fired a firearm. 

PCRA Court Opinion, filed October 9, 2014 at 1-2 (citations to the record and 

unnecessary capitalization omitted).

The trial court sets forth some of the relevant procedural history of 

this appeal as follows:

On May 23, 2008, [Appellant] was arrested and charged 

with criminal homicide and related offenses in connection 

with the events of May 21, 2008. From September 29, 

2009 through October 2, 2009[,] a trial was held before 

the Honorable Ann A. Osborne. [Appellant] was 

represented by Mary Beth Welch, Esq. at trial.[2] 

On January 20, 2010, [Appellant] was sentenced to a term 

of 20 to 40 years[’] imprisonment for murder in the third 

degree, and to consecutive terms of 42 to 84 months for 

firearms without a license and 12 to 24 months for 

possession of an instrument of crime.[3] 

On February 17, 2010, counsel for [Appellant] filed a postsentence motion for arrest of judgment, for judgment of 

acquittal, and for a new trial.[4] 

On December 21, 2010, the court permitted Mary Elizabeth 

Welch, Esq. to withdraw as counsel for [Appellant]. Jordan 

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2 The court conducted a previous trial from June 2, 2009 through June 5, 

2009, in which Appellant was represented by different counsel, Thomas 

Dreyer, Esq. The jury was unable to reach a unanimous verdict, and the 

court declared a mistrial.

3 18 Pa.C.S. §§ 2502, 6106, 907, respectively.

4

In his post-sentence motion, Appellant requested an additional ten days 

after receipt of the notes of testimony to raise additional post-sentence 

motions. The court granted this request on December 23, 2010.
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Zeitz was appointed by the court to represent [Appellant] 

in all matters directly related to the previously filed post 

sentence motions and for purposes of appeal. 

On February 1, 2011, new counsel for [Appellant], Jordan 

Zeitz, Esq., filed a petition for funds for an investigator to 

possibly uncover “after-discovered evidence.” On April 6, 

2011, the request was denied. 

On April 25, 2011[, Appellant] filed supplemental postsentence motions and [a] request for an evidentiary 

hearing and oral argument. In this motion, [Appellant] 

complained of various instances of alleged trial court error, 

alleged that trial counsel provided ineffective assistance, 

requested a modification of sentence, and requested an 

evidentiary hearing. On July 27, 2011[,] [Appellant’s] 

post-sentence motions were denied without a hearing.[5] 

On September 21, 2011 [Appellant] filed a motion to 

supplement the record. On October 14, 2011 the court 

denied the motion. 

On April 24, 2012 the Commonwealth filed a motion to 

strike improper exhibits, documents and arguments in 

Appellant’s Brief and reproduced record pursuant to 

Pa.R.A.P. 1921. On April 30, 2012, [Appellant] filed an 

answer in opposition to the Commonwealth’s motion to 

strike. On May 11, 2012, the court denied the 

Commonwealth’s motion to strike.

PCRA Court Opinion at 2-3 (unnecessary capitalization omitted). 

On August 8, 2012, this Court affirmed Appellant’s January 20, 2010 

judgment of sentence. Appellant filed a counseled PCRA petition on January 

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5 On August 25, 2011, in consideration of Appellant’s notice of appeal, the 

court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of 

errors complained of upon appeal, and Appellant timely complied.
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2, 2013. After an evidentiary hearing on August 1, 2013, the court denied 

Appellant PCRA relief on March 4, 2014.

On March 10, 2014, Appellant filed a notice of appeal. On March 13, 

2014, the court ordered Appellant to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely 

complied on March 20, 2014.

Appellant raises the following five issues for our review:

I. WHETHER TRIAL COUNSEL RENDERED INEFFECTIVE 

ASSISTANCE OF COUNSEL BY FAILING TO CALL CERTAIN 

WITNESSES AND INTRODUCE OTHER EVIDENCE WHICH 

WOULD HAVE ESTABLISHED THAT THE DECEDENT WAS IN 

FACT ARMED WITH A HANDGUN PRIOR TO BEING SHOT 

AND WHICH WOULD HAVE SUPPORTED AN INSTRUCTION 

ON BOTH MANSLAUGHTER AND SELF-DEFENSE WHERE 

TRIAL COUNSEL ULTIMATELY ADMITTED DURING THE 

EVIDENTIARY HEARING THAT SAID WITNESSES AND 

EVIDENCE EXISTED AT THE TIME OF TRIAL DESPITE HER

CLAIMS TO THE CONTRARY?

II. WHETHER TRIAL COUNSEL RENDERED INEFFECTIVE 

ASSISTANCE OF COUNSEL BY FAILING TO CALL 

APPELLANT AS A TRIAL WITNESS WHOSE TESTIMONY 

WOULD HAVE SUPPORTED AN INSTRUCTION ON SELFDEFENSE?

III. WHETHER TRIAL COUNSEL RENDERED INEFFECTIVE 

ASSISTANCE OF COUNSEL BY FAILING TO PRESENT A 

COGENT THEORY OF DEFENSE AND BY FAILING TO 

REQUEST AN INSTRUCTION ON THE THEORY OF SELFDEFENSE?

IV. WHETHER TRIAL COUNSEL RENDERED INEFFECTIVE 

ASSISTANCE OF COUNSEL BY ELICITING TESTIMONY 

THAT APPELLANT HAD ENGAGED IN PRIOR CRIMINAL 

ACTIVITY AND BY STATING IN HER CLOSING ARGUMENT 

THAT APPELLANT HAD ENGAGED IN SUCH ACTIVITY?
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V. WHETHER THE TRIAL COURT ERRED BY FAILING TO “WRIT 

IN” A WITNESS WHO POSSESSED “NEWLY DISCOVERED” 

EVIDENCE IN FURTHER SUPPORT OF APPELLANT’S 

POSITION THAT THE DECEDENT WAS IN-FACT ARMED 

WITH A HANDGUN PRIOR TO BEING SHOT?

Appellant’s Brief at 4.

Our well-settled standard of review for orders denying PCRA relief is 

“to determine whether the determination of the PCRA court is supported by 

the evidence of record and is free of legal error. The PCRA court’s findings 

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

certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-192 

(Pa.Super.2013) (internal quotations and citations omitted).

To be eligible for PCRA relief, a petitioner must plead and prove, by a 

preponderance of the evidence, that his conviction or sentence was the 

result of one or more of the following:

(i) A violation of the Constitution of this 

Commonwealth or the Constitution or laws of the United 

States which, in the circumstances of the particular 

case, so undermined the truth-determining process that 

no reliable adjudication of guilt or innocence could have 

taken place.

(ii) Ineffective assistance of counsel which, in the 

circumstances of the particular case, so undermined the 

truth-determining process that no reliable adjudication 

of guilt or innocence could have taken place.

(iii) A plea of guilty unlawfully induced where the 

circumstances make it likely that the inducement 

caused the petitioner to plead guilty and the petitioner 

is innocent.
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(iv) The improper obstruction by government officials 

of the petitioner's right of appeal where a meritorious 

appealable issue existed and was properly preserved in 

the trial court.

(v) Deleted.

(vi) The unavailability at the time of trial of 

exculpatory evidence that has subsequently become 

available and would have changed the outcome of the 

trial if it had been introduced.

(vii) The imposition of a sentence greater than the 

lawful maximum.

(viii) A proceeding in a tribunal without jurisdiction.

42 Pa.C.S. § 9543(a)(2). 

In his first four issues on appeal, Appellant argues his counsel was 

ineffective and concludes the ineffective assistance of counsel entitles him to 

a new trial. We disagree. 

This Court follows the Pierce6test adopted by our Supreme Court to 

review claims of ineffective assistance of counsel:

When a petitioner alleges trial counsel’s ineffectiveness in 

a PCRA petition, he must prove by a preponderance of the 

evidence that his conviction or sentence resulted from 

ineffective assistance of counsel which, in the 

circumstances of the particular case, so undermined the 

truth-determining process that no reliable adjudication of 

guilt or innocence could have taken place. We have 

interpreted this provision in the PCRA to mean that the 

petitioner must show: (1) that his claim of counsel’s 

ineffectiveness has merit; (2) that counsel had no 

reasonable strategic basis for his action or inaction; and 

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6 Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).
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(3) that the error of counsel prejudiced the petitioner-i.e., 

that there is a reasonable probability that, but for the error 

of counsel, the outcome of the proceeding would have 

been different. We presume that counsel is effective, and 

it is the burden of Appellant to show otherwise.

Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004), appeal 

denied, 889 A.2d 87 (Pa.2005), cert. denied, 547 U.S. 1129, 126 S.Ct 2029, 

164 L.Ed.2d 782 (2006) (internal citations and quotations omitted). The 

petitioner bears the burden of proving all three prongs of this test. 

Commonwealth v. Meadows, 787 A.2d 312, 319-320 (Pa.2001). “If an 

appellant fails to prove by a preponderance of the evidence any of the 

Pierce prongs, the Court need not address the remaining prongs of the 

test.” Commonwealth v. Fitzgerald, 979 A.2d 908, 911 (Pa.Super.2009), 

appeal denied, 990 A.2d 727 (2010) (citation omitted). 

In his first and third issues, Appellant claims counsel was ineffective 

for failing to present a self-defense or manslaughter defense. Appellant 

argues counsel should have called certain witnesses who would have 

testified that Victim had a gun, made threatening comments about 

Appellant, and had a history of violent behavior. He claims that testimony 

from these witnesses would have supported a self-defense or manslaughter 

defense. Further, Appellant contends counsel was aware of the existence of 

the witnesses and other evidence of Victim’s violence and that counsel’s 

failure to call the witnesses and present a self-defense or manslaughter 

defense was ineffective. We disagree.
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To obtain relief on a missing witness claim, the appellant is required to 

establish that (1) the witness existed; (2) the witness was available; (3) 

counsel was informed of the existence of the witness or counsel should 

otherwise have known of him; (4) the witness was prepared to cooperate 

and testify for appellant at trial; and (5) the absence of the testimony 

prejudiced appellant so as to deny him a fair trial. Commonwealth v.

Stanley, 632 A.2d 871, 872 (Pa.1993) (citing Commonwealth v. Petras, 

534 A.2d 483, 485 (Pa.Super.1987)). It is the appellant’s responsibility to 

show that counsel was actually aware of the witness’s existence or had a 

duty to know of the witness. Id. “Moreover, Appellant must show how the 

uncalled witnesses’ testimony would have been beneficial under the 

circumstances of the case.” Commonwealth v. Gibson, 951 A.2d 1110, 

1134 (Pa.2008) (internal citations omitted).

Here, because Appellant and counsel chose to employ a strategy of 

poking holes in the prosecution’s case and not to pursue a defense of 

voluntary manslaughter or self-defense, Appellant did not show how the 

uncalled witnesses’ testimony would have been beneficial under the 

circumstances of the case. See Gibson, supra.. 

“Under Pennsylvania law, a homicide defendant is entitled to a charge 

on involuntary or voluntary manslaughter only if the evidence adduced at 

trial would reasonably support a verdict on such a charge.” 
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Commonwealth v. Soltis, 687 A.2d 1139, 1141 (Pa.Super.1996), appeal 

denied, 695 A.2d 786 (Pa.1997). 

Voluntary manslaughter is defined by statute:

§ 2503. Voluntary manslaughter

(a) General rule.--A person who kills an individual 

without lawful justification commits voluntary 

manslaughter if at the time of the killing he is acting under 

a sudden and intense passion resulting from serious 

provocation by:

(1) the individual killed; or

(2) another whom the actor endeavors to kill, but he 

negligently or accidentally causes the death of the 

individual killed.

18 Pa.C.S. § 2503.

To establish a claim of self-defense, a defendant must prove three 

elements: “(a) [that the defendant] reasonably believed that he was in 

imminent danger of death or serious bodily injury and that it was necessary 

to use deadly force against the victim to prevent such harm; (b) that the 

defendant was free from fault in provoking the difficulty which culminated in 

the slaying; and (c) that the [defendant] did not violate any duty to retreat.” 

Commonwealth v. Mouzon, 53 A.3d 738, 740-41 (Pa.2012) (internal

footnotes omitted). Although the burden is on the Commonwealth to prove 

beyond a reasonable doubt that the defendant was not acting in selfdefense, “before the defense is properly in issue, there must be some 

evidence, from whatever source, to justify such a finding.” Id. at 741.
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Here, there was not enough evidence to support a finding of voluntary 

manslaughter or self-defense. See Soltis, supra; Mouzon, supra. Based 

on evidence that Appellant shot Victim in the back four times and Appellant’s 

unwillingness to testify or admit that he shot Victim, Appellant and counsel 

chose to employ a strategy of poking holes in the prosecution’s case instead 

of presenting a self-defense or voluntary manslaughter defense. For this 

reason, counsel had no reason to call witnesses who might have said that 

Victim had a gun or was violent. The PCRA court reasoned:

Trial counsel cannot be deemed ineffective for failing to 

call witnesses to support defenses which were not options 

available to trial counsel at the time of trial.

* * *

The evidence in this case did not support a claim of serious 

provocation by the victim causing a sudden and intense 

passion by [Appellant] resulting in [Victim’s] death. There 

were two incidents which involved arguments between 

appellant and [Victim] but neither could be characterized 

as involving a serious provocation by [Victim] causing 

[Appellant] to react with a sudden and intense passion. 

The evidence established that there had been an exchange 

of words without a physical confrontation. The record is 

devoid of evidence of sudden and intense serious

provocation which would have supported a voluntary 

manslaughter instruction.

* * *

The evidence in this case did not support a claim of 

necessity due to imminent danger of death, great bodily 

harm, or the commission of a felony, resulting in [Victim’s] 

death. There was no testimony to suggest that [Appellant]

was fearful of [Victim] or believed that [Victim] had a 

weapon. Additionally, the testimony at trial established 

that once [Victim] began to run away from [Appellant], 
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[Appellant] continued shooting and hit [Victim] four times 

in the back. The record is devoid of any evidence of 

necessity which would justify a finding of self-defense. 

This claim is therefore without merit.

PCRA Court Opinion at 5-7.

We agree with the PCRA court’s determination that Appellant’s first 

and third issues lack merit.

In his second issue, Appellant complains that counsel was ineffective 

for failing to call Appellant as a witness to support a self-defense theory. We 

disagree.

We observe:

The decision of whether or not to testify on one’s own 

behalf is ultimately to be made by the defendant after full 

consultation with counsel. In order to sustain a 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. Michaud, 70 A.3d 862, 869 (Pa.Super.2013) (citing 

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

[U]nless appellant can show that counsel interfered with 

his freedom to decide to testify or unless appellant can

point to specific advice of counsel so unreasonable as to 

vitiate a knowing and intelligent decision to testify, 

appellant cannot succeed on an ineffective assistance of 

counsel claim.

Com. v. Bango, 685 A.2d 564, 567 (Pa.Super.1996) aff'd, 742 A.2d 1070 

(Pa.1999).
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In the instant case, the PCRA court properly determined that 

Appellant’s second claim lacks merit. The court gave Appellant a thorough 

colloquy of his absolute right to testify or not to testify. Appellant admitted 

at his PCRA hearing that he chose not to testify, despite his attorney’s 

contrary advice. Further, as discussed above, the instruction of self-defense 

was not appropriate, and Appellant’s testimony would not have altered the 

conclusion. 

In his fourth issue, Appellant argues counsel was ineffective for 

eliciting evidence of Appellant’s prior criminal activity, and for mentioning it 

during her closing argument. Again, we disagree with Appellant.

Appellant’s counsel had a strategic basis for mentioning possible 

criminal activity in her closing argument, namely giving the jury some 

possible reasons, other than murder, that could make a person run from the 

police. Thus, his claim lacks merit. See Pierce, supra.

The trial court reasoned:

A review of the record does not indicate that trial counsel 

introduced evidence that [Appellant] had engaged in prior 

criminal activity. During cross-examination of Detective 

Jay, trial counsel elicited testimony as to whether there 

were any controlled substances in the house, and he 

responded that crack cocaine was found. In trial counsel’s 

closing argument, she stated that [Appellant] was running 

from the police on the night of the incident, but that this 

fact was not necessarily indicative of [Appellant’s] guilt. 

She suggested to the jury that there are many reasons 

why one would run from the police, and stated, “Maybe 

you have a probation violation...maybe you failed to 

appear for a bench warrant...maybe there’s drugs in the 

house.” This does not constitute a statement or inference 
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to the jury that [Appellant] had a prior criminal record. 

Trial counsel testified that she had strategically offered 

these suggestions to the jury as a way of countering the 

Commonwealth’s argument that [Appellant] “was running 

away from knowing that he was going to be arrested for 

murder.” Although trial counsel did let in evidence that 

[Appellant] had a probation or parole violation which would 

have generated a warrant, this was relevant for the 

aforementioned purposes of furnishing the context and 

completing the story of the events surrounding the 

incident. Furthermore, trial counsel testified that she had 

discussed this decision with [Appellant] prior to the start of 

trial and that he never took issue with the proposed 

strategy. 

In the Commonwealth’s opening, the prosecutor made a 

statement that [Appellant] was friends with the 

Commonwealth’s witnesses, was with them the night of 

the incident, and that these witnesses had criminal 

histories. Trial counsel states that the reason she did not 

object to this portion or any other of the Commonwealth’s 

opening was because she believed “That was his 

explanation of why his witnesses were less than forthright 

and changed their stories, which was part of my defense 

as well.” Trial counsel neither elicited testimony nor stated 

that [Appellant] had engaged in prior criminal activity. This 

claim is therefore without merit.

Trial Court Opinion at 8-9. 

In his final issue, Appellant attempts to obtain PCRA relief by claiming 

he has newly discovered evidence, specifically a notarized letter from a 

fellow inmate, John Webb, who explains Victim had a gun. Appellant argues 

that testimony of Mr. Webb would support a self-defense theory for 

Appellant.

To be eligible for PCRA relief based on after acquired evidence, the 

appellant must plead and prove by a preponderance of the evidence “[t]he 
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unavailability at the time of trial of exculpatory evidence that has 

subsequently become available and would have changed the outcome of the 

trial if it had been introduced.” 42 Pa.C.S. § 9543 (a)(2)(vi). A petitioner 

must establish that: “(1) the evidence has been discovered after trial and it 

could not have been obtained at or prior to trial through reasonable 

diligence; (2) the evidence is not cumulative; (3) it is not being used solely 

to impeach credibility; and (4) it would likely compel a different verdict.” 

Commonwealth v. D’Amato, 856 A.2d 806, 823 (Pa.2004) (quoting

Commonwealth v. Abu-Jamal, 720 A.2d 79, 94 (Pa.1998)). 

Appellant is attempting to introduce a letter written after the trial from 

a fellow inmate that Appellant claims had a conversation with a witness. He 

fails to plead and prove that this letter is exculpatory evidence that was not 

available at the time of trial, has subsequently become available, and would 

change the outcome of the trial. See D’Amato, supra. The trial court 

reasoned:

The letter is unsubstantiated hearsay from a convicted 

felon regarding a conversation he allegedly had with a 

Commonwealth witness after trial. Additionally, two eye 

witnesses at trial, Rashaad Carroll and Jabree Branch, both 

testified regarding the shooting and death of [Victim] at 

trial. Neither Caroll nor Branch, who is a friend of 

[Appellant], testified that [Victim] was carrying a handgun 

prior to being shot. This claim is therefore without merit.

PCRA Court Opinion at 10. 
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We see no reason to disturb the PCRA court’s findings or 

determinations because they are supported by the evidence and free of legal 

error. See Barndt, supra. Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/26/2015