J-S48018-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

LEON WASHINGTON, 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 3250 EDA 2018

Appeal from the PCRA Order Entered October 11, 2018

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0014192-2008

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

LEON WASHINGTON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 3251 EDA 2018

Appeal from the PCRA Order Entered October 11, 2018

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0015916-2008

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

LEON WASHINGTON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 3252 EDA 2018

Appeal from the PCRA Order Entered October 11, 2018

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0015917-2008
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BEFORE: KUNSELMAN, J., KING, J., and McCAFFERY, J.

MEMORANDUM BY KING, J.: FILED DECEMBER 1, 2020

Appellant, Leon Washington, appeals from the order entered in the 

Philadelphia County Court of Common Pleas, which dismissed his first petition 

under the Post Conviction Relief Act (“PCRA”).1 After careful review, we affirm 

in part, vacate in part, and remand for further proceedings consistent with 

this decision. 

The relevant facts and procedural history of this appeal are as follows. 

Appellant’s convictions stem from two shootings that took place in West 

Philadelphia on July 24, 2008 (“the Robinson Street Shooting”) and July 30, 

2008 (“the Ruby Street Shooting”). The instant appeal concerns the Ruby 

Street Shooting only, which the trial court described as follows:

[O]n July 30, 2008, a second shooting took place in the 

neighborhood. This time it was on Ruby Street between 

Ludlow and Chestnut. Near sundown, eyewitness Levi 

Green walked toward the front door of his home at 40 South 

Ruby Street to call his ten-year-old daughter, Victoria, to 

come inside. The girl was playing up the street on the front 

steps of a friend’s house at 30 South Ruby, near the Ruby–

Ludlow intersection. Before she turned around to go home, 

Victoria looked down the block and noticed several people 

arguing outside a bar at the corner of Ruby and Chestnut. 

Aware of mounting tension, Victoria and her friend decided 

to go inside the friend’s house immediately, but before they 

were safely inside, one of the men outside the bar, dressed 

in all black, pulled something out of his pocket and pointed 

north toward Ludlow Street. Victoria saw flashes, and a 

bullet pierced her left leg as she ran for cover.

____________________________________________

1 42 Pa.C.S.A. §§ 9541-9546.
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From a half block away, the initial shots sounded like 

firecrackers to Victoria’s father, Levi Green. But when he 

reached his front door, he heard several loud cannon-like 

booms coming from the opposite direction. As he ducked, 

Green saw light flashes as gunfire erupted near 36 South 

Ruby, in between his home and the steps where Victoria had 

been playing. The second round of shots was aimed south 

toward Ruby and Chestnut where the man dressed in black 

had been standing as he fired north toward Ludlow. When 

the shooting stopped, Levi Green looked up and saw a man 

on the ground outside his house. The man had been shot. 

Meanwhile, Green ran to help his daughter Victoria.

Within minutes, patrolling officers arrived on the scene. 

They found a man later identified as Anthony Mitchell, 

walking near Ruby and Ludlow with a gunshot wound to the 

leg. Although several bystanders warned officers that 

Mitchell was armed, a search revealed no gun. Officers then 

transported Mitchell to a hospital.

At approximately the same time, additional responding 

officers were flagged down near 113 South Ruby, just south 

of the Chestnut Street intersection. There, they found 

[Appellant] laying on the sidewalk in a white t-shirt and 

boxer shorts with gunshot wounds to his arm and side. 

Police later discovered 113 South Ruby was [Appellant’s] 

aunt’s residence. The officers placed [Appellant] in the back 

of their car and rushed him to the hospital. On the way, 

[Appellant] claimed he was simply walking down Ruby 

Street when he suddenly heard gunshots and got hit.

Back at the Ruby Street crime scene, other police officers 

found eight .45 caliber cartridge casings and one live round 

outside the corner bar where the gunman who shot Victoria 

had been standing. Subsequent analysis by Officer John 

Cannon of the Philadelphia police Firearms Unit (who 

testified as a firearms expert at trial) concluded those shell 

casings were fired by the same gun used to shoot Lyndon

McBride six days earlier. See N.T. 6/10/10 at 99–100. No 

shell casings were found near 36 South Ruby, suggesting 

that the second gunman had used a revolver which, unlike 

the semiautomatic handgun used outside the corner bar, 

does not expel fired cartridges.
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When detectives arrived at the hospital to question Mitchell 

and [Appellant], they found the two men gesturing back and 

forth as they received treatment in beds just a few feet 

apart. Both men initially refused to give formal statements, 

but each was arrested for shooting the other.

The following day, [Appellant] changed his mind and 

decided to talk to police. His new account of the events the 

night before on Ruby Street differed significantly from what 

he told the officers as they drove him to the hospital. 

[Appellant] now claimed he was at 113 South Ruby, the 

home of his aunt, Sophia Dessus, when he noticed two 

women arguing near Ludlow Street. He claimed that he and 

a friend walked to the corner of Ruby and Chestnut and 

began arguing with the women, further antagonizing them. 

According to [Appellant], one of the women phoned a man 

named Jameer, who drove up moments later and started 

shooting.

Unpersuaded by [Appellant’s] story and knowing that the 

cartridge casings found at the July 24 and July 30 shootings 

were from the same gun, detectives executed a search 

warrant on [Appellant’s] house at 413 South Ruby 

approximately eighteen hours after the second shooting. 

The house had been unguarded by the police during the 

interim and the gun was not found.

(Trial Court Opinion, dated December 28, 2012, at 3-5). 

The Commonwealth charged Appellant in connection with both shootings 

with three counts each of attempted murder, aggravated assault, conspiracy 

to commit murder, violations of the Uniform Firearms Act (“VUFA”), carrying 

a firearm on public property in Philadelphia, possessing instruments of crime 

(“PIC”), terroristic threats, simple assault, and recklessly endangering another 

person (“REAP”). The trial court granted the Commonwealth’s motion to 

consolidate the cases, and Appellant proceeded to a jury trial in June 2010. 

At the conclusion of the Commonwealth’s evidence, the trial court 
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granted Appellant’s motion for judgment of acquittal on the attempted murder 

charges relating to the Ruby Street Shooting, but denied it as to all other 

counts. Ultimately, the jury found Appellant guilty on the aggravated assault, 

PIC, and VUFA charges. On August 17, 2010, the trial court sentenced 

Appellant to an aggregate term of fifteen to thirty years’ imprisonment, 

followed by five years of state-supervised probation. This Court affirmed the 

judgment of sentence on May 16, 2014, and Appellant did not file a petition 

for allowance of appeal. See Commonwealth v. Washington, 104 A.3d 50 

(Pa.Super. 2014) (unpublished memorandum).

On May 7, 2015, Appellant filed a timely pro se PCRA petition. The PCRA 

court appointed counsel, who filed an amended petition on December 3, 2016. 

On May 18, 2017, the Commonwealth filed a motion to dismiss the petition 

without an evidentiary hearing. On June 7, 2018, the PCRA court issued its 

Pa.R.Crim.P. 907 notice of intent to dismiss the petition without a hearing. 

Appellant did not respond to the Rule 907 notice, and the PCRA court 

dismissed the petition without a hearing on October 11, 2018. 

On November 8, 2018, Appellant timely filed separate notices of appeal 

for each of the underlying dockets.2 The PCRA court did not order Appellant 

to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on 

appeal, and none was filed. 

Appellant raises the following issue on appeal:

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2 This Court subsequently consolidated the appeals sua sponte.
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Where a PCRA petition raises substantial issues of material 

fact should the court hold an evidentiary hearing to 

determine whether relief should be given?

(Appellant’s Brief at 11). 

Our standard of review of the denial of a PCRA petition is limited to 

examining whether the evidence of record supports the court’s determination 

and whether its decision is free of legal error. Commonwealth v. Conway, 

14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795 

(2011). This Court grants great deference to the findings of the PCRA court if 

the record contains any support for those findings. Commonwealth v. Boyd, 

923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 

(2007). We do not give the same deference, however, to the court’s legal 

conclusions. Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super. 2012). 

To obtain reversal of a PCRA court’s decision to dismiss a 

petition without a hearing, an appellant must show that he 

raised a genuine issue of fact which, if resolved in his favor, 

would have entitled him to relief, or that the court otherwise 

abused its discretion in denying a hearing. We stress that 

an evidentiary hearing is not meant to function as a fishing 

expedition for any possible evidence that may support some 

speculative claim of ineffectiveness. 

Commonwealth v. Roney, 622 Pa. 1, 17-18, 79 A.3d 595, 604-05 (2013), 

cert. denied, 574 U.S. 829, 135 S.Ct. 56, 190 L.Ed.2d 56 (2014) (internal 

citations and quotation marks omitted). 

Although Appellant includes one issue in his statement of questions 

presented, he actually raises two distinct arguments. In his first argument, 

Appellant asserts that trial counsel was ineffective for failing to call an 
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eyewitness, Denya Martin. Appellant posits that Martin would have testified 

that she witnessed the Ruby Street Shooting, and she saw that Appellant did 

not have a firearm. Appellant further asserts that Martin was available and 

willing to testify on his behalf at trial. Based upon the foregoing, Appellant 

maintains trial counsel’s decision not to call Martin was unreasonable. 

Appellant also avers that the PCRA court erred in denying relief on this claim, 

because it speculated about whether trial counsel had a rational basis for not 

calling Martin. Appellant concludes some relief is warranted. We agree. 

Pennsylvania law presumes counsel has rendered effective assistance. 

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When 

asserting a claim of ineffective assistance of counsel, the petitioner is required 

to demonstrate: (1) the underlying claim is of arguable merit; (2) counsel had 

no reasonable strategic basis for his action or inaction; and, (3) but for the 

errors and omissions of counsel, there is a reasonable probability that the 

outcome of the proceedings would have been different. Commonwealth v. 

Kimball, 555 Pa. 299, 724 A.2d 326 (1999). The failure to satisfy any prong 

of the test for ineffectiveness will cause the claim to fail. Williams, supra. 

“The threshold inquiry in ineffectiveness claims is whether the 

issue/argument/tactic which counsel has foregone and which forms the basis 

for the assertion of ineffectiveness is of arguable merit....” Commonwealth 

v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot be 

found ineffective for failing to pursue a baseless or meritless claim.” 
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Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004). 

Once this threshold is met we apply the ‘reasonable basis’ 

test to determine whether counsel’s chosen course was 

designed to effectuate his client’s interests. If we conclude 

that the particular course chosen by counsel had some 

reasonable basis, our inquiry ceases and counsel’s 

assistance is deemed effective. 

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted). 

“[T]he PCRA court does not question whether there were other more 

logical courses of action which counsel could have pursued; rather, [the court] 

must examine whether counsel’s decisions had any reasonable basis.” 

Commonwealth v. Mason, 634 Pa. 359, 388, 130 A.3d 601, 618 (2015) 

(citation and quotation marks omitted). “Where matters of strategy and 

tactics are concerned, [a] finding that a chosen strategy lacked a reasonable 

basis is not warranted unless it can be concluded that an alternative not

chosen offered a potential for success substantially greater than the course 

actually pursued.” Id. (citations and quotation marks omitted). 

Importantly, “the reasonableness of an attorney’s strategic or tactical 

decision making is a matter that we usually consider only where evidence has 

been taken on that point” by the PCRA court. Commonwealth v. DuPont, 

860 A.2d 525, 533 (Pa.Super. 2004). In general, to enable appellate review, 

PCRA courts must provide a “legally robust discussion, complete with clear 

findings of fact where required.” Commonwealth v. Montalvo, 631 Pa. 516, 

531, 114 A.3d 401, 410 (Pa. 2015).

Prejudice is established when [an appellant] demonstrates
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that counsel’s chosen course of action had an adverse effect

on the outcome of the proceedings. The [appellant] must 

show that there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a 

probability sufficient to undermine confidence in the 

outcome. In [Kimball, supra], we held that a criminal 

[appellant] alleging prejudice must show that counsel’s

errors were so serious as to deprive the defendant of a fair 

trial, a trial whose result is reliable. 

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002) 

(some internal citations and quotation marks omitted). 

For claims of ineffectiveness based upon counsel’s failure to call a 

witness: 

A defense attorney’s failure to call certain witnesses does 

not constitute per se ineffectiveness. In establishing 

whether defense counsel was ineffective for failing to call 

witnesses, a defendant must prove the witnesses existed, 

the witnesses were ready and willing to testify, and the 

absence of the witnesses’ testimony prejudiced petitioner 

and denied him a fair trial. 

Commonwealth v. Cox, 603 Pa. 223, 267-68, 983 A.2d 666, 693 (2009) 

(internal citations omitted). A petitioner “must show how the uncalled 

witnesses’ testimony would have been beneficial under the circumstances of 

the case.” Commonwealth v. Gibson, 597 Pa. 402, 441, 951 A.2d 1110, 

1134 (2008). 

Further, a PCRA petitioner’s request for an evidentiary hearing 

must include a certification, signed by the petitioner, as to 

each intended witness, identifying the witness’s name, 

address, date of birth, the expected substance of his or her 

testimony, and any documents material to that testimony. 

42 Pa.C.S. § 9545(d)(1). Failure to substantially comply 
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with this requirement will render the proposed witness’s 

testimony inadmissible. Id. 

Commonwealth v. Lippert, 85 A.3d 1095, 1097 (Pa.Super. 2014) (quoting 

Commonwealth v. Robinson, 596 Pa. 580, 581, 947 A.2d 710, 711 (2008)). 

Instantly, Appellant’s amended PCRA petition includes an affidavit by 

Denya Martin, claiming she was an eyewitness to the Ruby Street Shooting. 

Martin alleged that Appellant did not possess or use a firearm that day. 

Further, Martin averred that she informed the police that Appellant did not 

have a firearm. 

With respect to the Ruby Street Shooting, Appellant’s petition argued 

he was present at the scene but he was a mere victim. No one directly 

identified Appellant as the shooter, nor was there any direct evidence that 

Appellant possessed or used a firearm. Instead, the Commonwealth proved 

its case by circumstantial evidence, linking Appellant’s presence at the scene 

with a casing that matched a firearm that Appellant was seen using several 

days before. Thus, the main issue at trial was whether Appellant was a victim 

or a participant in the Ruby Street Shooting. According to Appellant, Martin’s 

testimony would bolster his claim that he was a victim. 

The PCRA court evaluated Appellant’s claim and found that trial counsel 

had a reasonable basis for failing to call Martin as a witness, because the 

proposed testimony in her affidavit was inconsistent with her July 30, 2008 

police statement. In its current state, however, the record does not support 

such a finding. We emphasize that Martin’s July 30, 2008 statement to police 
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provided the following: 

I got off work at [2:30] and went home. I went to get my 

daughter at 55th and Chestnut around 6:00 pm. I went over 

to Ruby street to see my Grandmother who lives at unit [S]

Ruby Street. My stepsister Deleah lives right there also at 

25 S. Ruby Street. I was at Ruby and Ludlow when I saw a 

group of guys walking toward me. There was another group 

coming from behind me. I had a feeling they were gonna 

fight. I had [my] daughter with me and there were other 

kids outside playing. I went to stop the fight that was gonna 

happen. They were arguing and talking about getting guns. 

There was a fat guy there arguing with a taller guy with 

braids. [A] guy I know as “Hatty” walked off like he 

was going to get a gun. He walked towards Chestnut 

Street. I went to go into the house cause I knew there 

would be a shooting. I heard gunshots and ran inside. I 

looked out and saw the fat [guy3] on the ground. He had a 

silver gun in his hand. I went back to my grandmother’s 

house and the police arrived and came and got me. 

(Commonwealth’s Motion to Dismiss, filed 5/18/17, at Appendix A) (emphasis 

added).

After providing the above narrative, the police asked Martin the 

following series of questions:

Q. You were also shown a single photo. Do you recognize 

it?

A. Yes, that’s “Hatty” (Indicating [Appellant]).

Q. Did you see him with a gun?

A. No. 

(Id.) (emphasis added).

Although the PCRA court found that Martin’s subsequent affidavit 

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3 The “fat guy” identified in this statement references Anthony Mitchell. 
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contradicted her statement to the police, the affidavit specifically provided:

I was an eyewitness to the shooting which happened on 7-

30-2008 at Ruby Street between [Chestnut] and Ludlow in 

Philadelphia. I gave a statement to the police that day on 

7-30-2008. After the shooting that I witnessed with my own 

eyes. I know for a fact that Haddee a/k/a [Appellant]

who was a shooting victim that day. Was not a person 

shooting a gun. Nor, did I see him with a gun. As I 

told the police I saw Haddee a/k/a [Appellant] standing at 

the corner of Chestnut in front of the bar. When shots were 

fired. I saw him turn around to run when he was shot in his 

back. 

There were two separate crowds on both corners of 

Chestnut and Ruby. And another crowd of individuals at 

[Ruby] and Ludlow. I’ve known Haddee a/k/a [Appellant]

several years before this incident. And I specifically told the 

police that Haddee never had a gun in his hand at the time 

of the shooting on the day it happened. 

I heard Haddee a/k/a [Appellant] was convicted for the 

shooting. Being that I was “eyewitness” who made a 

statement the day of the shooting to the police about what 

I witnessed. I was available and willing to testify on Haddee 

a/k/a [Appellant’s] behalf. I was never contacted by anyone 

after giving my statement. 

I am available and willing to testify for [Appellant] to assist 

him to be exonerated of a crime that he never committed. 

I witnessed the shooting with my own eyes and bullets flew 

in my directions. ... The shooter looks nothing like Haddee 

a/k/a [Appellant]. It is imperative that his lawyer contact 

me in a timely manner to appear at a hearing in court. 

(Amended PCRA petition, filed 12/3/16, at Exhibit “B”). 

The PCRA court found that Martin’s statement to the police that 

Appellant “walked off like he was going to get a gun,” contradicted her 

statement in the affidavit claiming Appellant did not have a gun. According 

to the PCRA court, Martin’s police statement established that Appellant was 
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not merely an innocent bystander, but rather he was “someone she thought 

was going to be a participant in a street fight with guns.” (PCRA Court Opinion, 

filed 8/30/19, at 2). However, Martin’s police statement never indicated that 

she saw Appellant use or possess a firearm. In fact, when the police officer 

specifically asked Martin if she saw Appellant with a gun, Martin replied “No.” 

(See Martin’s Police Statement, 7/30/08, at R. 175). Nothing in Martin’s 

police statement concerning whether Appellant used or possessed a firearm 

actually contradicts the content of her affidavit. Therefore, contrary to the 

PCRA court’s conclusion, the two statements are consistent. 

Because the PCRA court did not hold an evidentiary hearing, the best 

resolution of this issue is to remand for a hearing on trial counsel’s decision 

not to call Martin as a witness. See Montalvo, supra; DuPont, supra. 

Following the hearing, the PCRA court can make the credibility determinations 

and factual findings necessary for a proper evaluation of trial counsel’s 

effectiveness. 

In his second argument, Appellant argues that trial counsel was 

ineffective for failing to have the clothing that Appellant wore during the Ruby 

Street Shooting tested for gunshot residue. Appellant claims that because his 

defense was that he was not the shooter, the absence of gunshot residue 

“could have been a major factor in bringing about a different verdict....” 

(Appellant’s Brief at 22). Appellant concludes the PCRA court erred in finding 

that he failed to explain how this evidence could have altered the outcome of 
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trial. We disagree. 

Boilerplate allegations, without more, cannot provide the basis for PCRA 

relief. See Commonwealth v. Spotz, 587 Pa. 1, 896 A.2d 1191, 1250 

(2006) (finding ineffectiveness claim insufficient when appellant “failed to set 

forth his claim pursuant to the three-prong Pierce test for establishing an 

ineffective assistance of counsel claim”); Commonwealth v. Bracey, 568 Pa. 

264, 273 n. 4, 795 A.2d 935, 940 n. 4 (2001) (“[A]n undeveloped argument, 

which fails to meaningfully discuss and apply the standard governing the 

review of ineffectiveness claims, simply does not satisfy Appellant’s burden of 

establishing that he is entitled to any relief”). In making assertions of 

ineffectiveness, a claimant must allege sufficient facts upon which a reviewing 

court can conclude that trial counsel may have been ineffective. See 

Commonwealth v. Durst, 522 Pa. 2, 5, 559 A.2d 504, 506 (1989). 

Ineffectiveness of counsel claims may not be raised in a vacuum. 

Commonwealth v. Morris, 546 Pa. 296, 312, 684 A.2d 1037, 1045 (1996). 

Instantly, in support of his argument, Appellant merely cites to a 

published report by Dr. Boris deKorczak, dated November 3, 1999. Dr. 

deKorczak’s report is not specific to the facts and issues in this case. Instead, 

it appears that Appellant is attempting to offer a generic expert report in 

support of his claim. Thus, Appellant failed to comply with the PCRA’s 

requirement that he include a signed certification regarding an expert witness 

who would have favorably testified for him on this issue. See Lippert, supra. 
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Additionally, the PCRA court found that this claim was weakened by the 

trial evidence establishing that Appellant was wearing only a t-shirt and boxers 

at the time of his arrest. Specifically, Dessus testified that Appellant was 

wearing shorts and a t-shirt, and not just his underwear when he left her 

home. However, after the shooting, Appellant was found wearing only a tshirt and boxers—he was not wearing his shorts. Based upon this evidence, 

the PCRA court found that a reasonable inference could be drawn that 

Appellant removed his clothing after the shooting occurred. The PCRA court 

determined that Appellant failed to establish how the absence of gunshot 

residue would have changed the outcome of his trial. As the record supports 

the PCRA court’s determination, we conclude that the court made no legal 

error in this regard. See Boyd, supra. Therefore, Appellant is not entitled 

to relief on his second argument. 

Based upon the foregoing, we affirm the order dismissing Appellant’s 

PCRA petition in part, vacate in part, and remand for an evidentiary hearing 

limited to the issue of trial counsel’s decision not to call Martin as a witness. 

Order affirmed in part, reversed in part, and case remanded. 

Jurisdiction relinquished. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/01/2020